THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


MONTGOMERY'S  MANUAL 

OF 


-PmCTICE  AND  FORMS 


SECOND  EDITION 


BY 

CHARLES  C,  MONTGOMERY,  B.  A.,  LL.  B. 

OF  THE  Los  ANGELES,  CALIFORNIA,  BAR 

PROFESSOR  FEDERAL  JURISDICTION  AND  PROCEDURE  AND  OF  EQUITY 

JURISPRUDENCE  AND  PROCEDURE,  COLLEGE  OF  LAW,  UNIVERSITY 

OF    SOUTHERN    CALIFORNIA.    FORMERLY   PROFESSOR 

CONSTITUTIONAL  LAW,  CREIGHTON  UNIVERSITY, 

OMAHA,  NEBRASKA. 


SAN  FRANCISCO 

BANCROFT- WHITNEY  COMPANY 

1918 


PREFACE  TO  SECOND  EDITION. 


Since  the  preparation  of  the  manuscript  for  the  first  edition  of 
this  Manual  a  large  number  of  decisions  have  been  published  settling 
points  of  practice  under  the  new  equity  rules ;  also  there  have  been 
a  number  of  new  statutes  passed  bearing  on  the  jurisdiction  and 
procedure  of  the  federal  courts. 

The  revision  follows  out  the  plan  of  the  original  work  in  gathering 
into  one  volume  of  convenient  size  all  the  statutes  and  court  rules 
bearing  on  the  subject  of  procedure,  at  law,  in  equity  and  in  criminal 
cases,  and  the  special  procedure  for  removal  and  appeal  and  error. 

A  complete  rearrangement,  however,  has  been  found  necessary 
to  accommodate  new  matter. 

Tables  of  statutes,  code  sections,  Supreme  Court  rules,  C.  C.  A. 
rules,  equity  rules  and  constitutional  provisions  and  amendments 
have  been  added  to  supplement  the  index  in  assisting  the  practi- 
tioner to  find  what  is  in  the  book  in  the  quickest  and  easiest  way. 

The  Circuit  Courts  of  Appeals  rules  have  been  so  arranged  that 
the  practitioner  may  see  at  a  glance  the  rules  in  his  own  circuit 
and  the  corresponding  and  similar  rule  in  other  circuits. 

The  equity  suit  occupies  thirty-four  chapters  in  the  revision 
instead  of  ten  chapters  in  the  original  work.  These  additional 
chapters  are  to  accommodate  the  new  decisions. 

Many  new  forms  and  suggestions  have  been  added. 

It  is  hoped  that  the  Manual  will  greatly  lighten  the  labor  of  the 
practitioner  in  the  preparation  and  trial  of  his  cases  in  the  federal 
courts. 

CHARLES  C.  MONTGOMERY. 

\ 

Los  Angeles,  May,  1918. 


PREFACE  TO  FIRST  EDITION. 


This  Manual  contains  in  one  volume,  of  convenient  size  for  office 
or  court  room  use,  verbatim  all  the  federal  statutes  and  court  rules 
(except  district  courts)  relating  to  the  practice  and  procedure  of 
the  ordinary  law,  equity,  or  criminal  case  in  the  federal  courts, 
with  many  forms  and  suggestions  as  to  the  steps  to  be  taken  in 
such  cases. 

Many  statutes  on  procedure  are  not  included  in  the  new  Judi- 
cial Code, — particularly  statutes  of  limitations,  evidence,  witnesses, 
depositions,  and  costs  and  fees.  These  are  included  verbatim  in 
the  text,  as  well  as  the  provisions  of  the  Judicial  Code  annotated, 
and  with  amendments  to  date.  The  Judicial  Code  is  also  set 
out  in  its  original  form  in  the  Appendix,  with  references  to  the 
places  where  its  various  provisions  may  be  found  in  the  text. 

The  new  equity  rules  are  set  out  and  annotated  in  the  Appendix, 
and  quoted  verbatim  in  the  text  whenever  bearing  on  the  subject 
thereof. 

The  Supreme  Court  rules  and  rules  of  all  the  Circuit  Courts  of 
Appeals  are  set  out  in  the  Appendix,  and,  where  necessary,  are 
quoted  and  referred  to  in  the  text. 

The  verbatim  quoting  of  the  statutes  and  rules  is  in  such  form 
that  there  can  be  no  confusion  as  to  what  is  and  what  is  not  a 
part  of  the  statute  or  rule  quoted. 

The  forms  are  scattered  through  the  work  in  juxtaposition  to 
the  laws  or  rules  on  which  they  are  based. 

There  are  threefold,  and  in  many  instances  fourfold,  references 
to  other  works,  authoritative  publications  containing  such  statutes 
or  rules.  "With  the  assistance  of  the  Manual,  the  practitioner  may, 

(Tii) 


Vlll  PREFACE  TO  FIRST  EDITION. 

with  the  present  law  in  convenient  form  at  hand,  quickly  refer  to 
its  former  condition,  and  note  the  similarities  or  changes  therein. 
The  references  and  annotations  will  also  be  useful  in  working  out 
some  of  the  finer  points  of  practice,  the  work  being  designed  as  a 
guide  book  rather  than  an  exhaustive  treatise. 

I  am  gratefully  indebted  to  Mr.  Claire  T.  Yan  Etten,  of  the 
Los  Angeles  Bar,  for  chapters  11,  28,  39,  40  and  41,  relating  to 
appellate  jurisdiction  and  procedure  of  the  Supreme  Court  and 
Circuit  Court  of  Appeals,  and  also  chapter  37,  on  "Receivers  and 
Injunctions,"  and  for  other  valuable  assistance  in  the  work.  I  am 
likewise  indebted  to  Mr.  Paul  Vallee,  of  the  Los  Angeles  Bar, 
for  the  annotations  to  the  Judicial  Code,  the  arrangement  of  the 
rules  of  the  Circuit  Courts  of  Appeals  in  the  Appendix,  and  for 
much  other  useful  aid  in  the  preparation  of  the  work. 

CHARLES  C.  MONTGOMERY. 

Los  Angeles,  California,  May  1,  1914. 


TABLE  OF  CONTENTS. 


CHAPTER  1. 

THE  FEDERAL  JUDICIAL  SYSTEM. 

SEO. 

1.  Functions  of  the  Federal  Courts. 

2.  Federal  Jurisdiction  Limited. 

3.  Judicial  Power  Under  the  United  States  Constitution. 

4.  Federal  Courts  Enumerated. 

5.  Federal  Procedure  at  Law  and  in  Equity. 

6.  Differences  in  Procedure  at  Law  and  in  Equity  in  the  Federal  Courts. 

7.  Actions  at  Law — Wherein  Conform  to  State  Practice. 

8.  Suits  in  Equity — Rules  of  Procedure. 

9.  Possibility  of  a  Federal  Blended  Procedure. 

10.  Differences  Between  Federal  and  State  Court  Procedure. 

11.  Why  a  Special  Study  of  Federal  Procedure  Required. 

12.  Desirability  of  Special  Study  of  Federal  Procedure. 


CHAPTER  2. 

JUDICIAL  OFFICERS— DISTRICT  COURT. 

20.  Judicial  Officers  Enumerated. 

21.  Judges — Division  of  Business  and  Assignment  of  Cases  for  Trial. 

22.  Designation  of  District  Judges  to  Hold  Court  in  Place  or  Aid  of  Another 

District  Judge. 

23.  Circuit  Judge,  When  to  Act  as  District  Judge. 

24.  Outside  District  Judges  for  Districts  in  the  Second  Circuit. 

25.  Substitutes  in  Cases  of  Interest,  Relationship,  Bias  or  Prejudice. 

26.  Duties  a*nd  Powers  of  Judges  Designated  in  Place  or  Aid  of  District 

Judges. 

27.  Other  Judicial  Officers — Disqualification  for  Appointment. 

28.  Clerks  and  Deputy  Clerks. 

29.  Marshals. 

30.  Deputy  Marshals. 

31.  Marshal's  Field  Deputies. 

32.  Criers  and  Bailiffs. 

33      United  States  District  Attorneys. 

34.  Assistant  District  Attorneys. 

35.  Court  Commissioners. 


TABLE  OF  CONTENTS. 


CHAPTER  3. 

JUDICIAL    DISTRICTS,    TEEMS,    EECORDS,    EEPOETS    AND    RULES 

OF  PRACTICE. 

SEO. 

50.  Judicial  Districts,  Terms  and  Places  of  Holding  Court. 

51.  Special  Terms,  Adjournments  and  Continuances. 

52.  When  Courts  are  Open. 

53.  Orders  of  Judge  at  Chambers  and  in  Vacation. 

54.  District  Court  Records. 

55.  Reports  of  Decisions. 

56.  Admission  to  Practice  Before. 

57.  Rules  of  Practice — Law  Actions. 

58.  Rules  of  Practice — Equity  Suits. 


CHAPTER  4. 

TERRITORIAL  JURISDICTION— VENUE. 

60.  In  General.  » 

61.  Civil  Suits — In  General. 

62.  Nonlocal  Suits  in  State  of  More  than  One  District. 

63.  Nonlocal   Suits   Where   District   Contains   More   than  One  Division — 

Criminal  Cases — Transfer. 

64.  Local  Suits  With  Defendant  in  Another  District  Same  State. 

65.  Local  Suits  With  Subject  Matter  Lying  Partly  in  One  District  and 

Partly  in  Another. 

66.  Liens — Clouds  on  Title — Absent  Defendant. 

67.  Receiver's  Jurisdiction  Over  Real  Property  in  Other  Districts  in  Circuit. 

68.  Transfer  to  Another  Division  on  Stipulation. 

69.  On  Creation  of  New  District  or  Division  or  Transfer  of  Territory. 

70.  Same — Preservation  and  Enforcement  of  Lions. 

71.  Infringement  of  Letters  Patent. 

72.  Under  Copyright  Laws. 

73.  To  Enjoin  Comptroller  of  Currency. 

74.  Part  of  Several  Defendants  not  Found. 

75.  Crimes  and  Offenses. 

76.  Penalties  and  Forfeitures. 

77.  Taxes  and  Internal  Revenue. 

78.  Condemnation  Insurrectionary  Property. 

79.  Seizures  for  Forfeiture — Embargo  or  Insurrection. 

80.  Prosecutions  for  Failure  to  File  Tariffs,  Giving  Rebates,  etc. 

81.  Prosecutions  for  Violations  of  the  Sixteen  Hour  Law. 

82.  Suits  Affecting  Orders  of  Interstate  Commerce  Commission. 


TABLE  OP  CONTENTS.  XI 

SEO. 

83.  Prosecutions  for  Injuries  to  Fortifications. 

84.  Prosecutions  of  Offenses  Against  the  Postal  Laws  in  Selling  Intoxicat- 

ing Liquors. 

85.  Prosecutions  for  Violations  of  Immigration  Lawa. 

86.  Issue  of  Venue — How  Raised. 


CHAPTER  5. 

DISTRICT  COURT'S  JURISDICTION. 

90.  In  General. 

91.  District  Court — Jurisdiction  Exclusive  of  State  Courts. 

92.  Exclusive  Jurisdiction. 

93.  District  Court — Jurisdiction  Concurrent  With  that  of  State  Courts — 

Amount  in  Controversy. 

94.  Original  Jurisdiction. 

95.  Original  Jurisdiction — Interpleader  of  Insurance  Companies. 

96.  Jurisdiction — Prosecution — Violation  of  Immigration  Laws. 

97.  Jurisdiction  by  Assignment. 

98.  Agriculture. 

99.  Alien  Enemies. 

100.  Same — Duties  of  Marshal. 

101.  Customs  Duties. 

102.  Rivers,  Harbors  and  Canals — Actions  to  Remove  Obstructions. 

103.  White  Slave  Traffic. 

104.  Appellate  Jurisdiction  Chinese  Exclusion  Laws. 

105.  Appellate  Jurisdiction  Yellowstone  National  Park. 

106.  Jurisdiction  of  Crimes  on  Indian  Reservations  South  Dakota. 

107.  Power  to  Enforce  Foreign  Consular  Awards. 

108.  Powers  of  Foreign  Consuls  Over  Disputes  Between  Seamen. 

109.  Arrest  of  Seamen  on  Application  of  Consul. 

110.  Commitment  and  Discharge. 

111.  Jurisdiction  in  Cases  Transferred  from  Territorial  Courts. 

112.  Jurisdiction  Under  Reclamation  Act. 

113.  Jurisdiction  Under  Income  Tax  Law. 

114.  Jurisdiction  in  Arbitration  of  Disputes  Between  Common  Carriers  and 

Employees. 

CHAPTER  6. 

FEDERAL  QUESTIONS. 

120.  What  is  a  Federal  Question! 

121.  Arises  in  Suits  With  Federal  Officers  Involving  Official  Acts. 

122.  Arises  in   Suits   With   Federal   Corporations   Existing  Under   Federal 

Laws. 


ill  TABLE  OF  CONTENTS. 

SEO. 

123.  Exception — Suits  With  National  Banks  Other  Than  by  or  Against  Of- 

ficers of  the  United  States. 

124.  Arising  Under  the  Constitution. 

125.  As  a  Ground  of  Original  Jurisdiction. 

126.  As  a  Ground  for  Removal. 

127.  Citizenship  not  Material  in  Suits  Involving  a  Federal  Question  Ex- 

cept When  Affecting  Venue. 

128.  Amount  Required  to  be  in  Controversy. 

129.  Question  must  Appear  on  the  Face  of  the  Bill  in  the  Federal  Court. 

130.  How  Question  must  Appear  in  a  State  Court  to  be  Removed  to  Federal 

Court. 

131.  Plea  of  Res  Adjudicata  as  Raising  a  Federal  Question. 

132.  Raising  the  Issue  as  to  Federal  Question. 


CHAPTER  7. 

DIVERSE  CITIZENSHIP. 

140.  In  General. 

141.  What  is  Citizenship! 

142.  Territorial  and  District  of  Columbia  Citizens  are  not  Included. 

143.  States  and  Territories  are  not  Citizens. 

144.  Corporations. 

145.  Joint  Stock  Companies. 

146.  Partnerships. 

147.  National  Banks. 

148.  Married  Women. 

149.  Personal  Representatives. 

150.  Trustees. 

151.  Guardians. 

152.  Aliens. 

153.  Indians. 

154.  Term  "Citizen"  Collective. 

155.  Change  of  Domicile  After  Suit  Commenced. 

156.  Change  of  Citizenship  or  Transfer  of  Subject  Matter  to  Give  Juris- 

diction. 

157.  Shifting  Parties  to  Create  Diversity. 

158.  Venue  as  Affecting  Jurisdiction  Based  on  Diverse  Citizenship. 

159.  Issue  of  Citizenship — How  Raised. 

160.  When  Want  of  Diversity  Appears  on  the  Trial. 

161.  Amendment  to  Show  Diversity. 


TABLE  OF  CONTENTS.  XI 1! 

• 

CHAPTER  8. 

AMOUNT  IN  CONTROVERSY. 

BECL 

170.  In  General. 

171.  When  Amount  in  Controversy  is  Material. 

172.  Same — Removal  of  Land  Grant  Cases. 

173.  When  the  Amount  in  Controversy  is  not  Material. 

174.  What  is  "Amount  in  Controversy." 

175.  Amount  Stated   in  Declaration  or   Bill   Controls   Unless    Pleaded    Erro- 

neously or  in  Bad   Faith. 

176.  Amount  in  Controversy  Includes  What. 

177.  Effect  of  Valid  Setoff  or  Payment. 

178.  Aggregating  Amounts  to  Create  Jurisdiction. 

179.  Amendment  to  Show. 

180.  State  Statutes  Do  not  Control  as  to  Splitting  Demands. 

181.  Raising  Issue  as  to  Amount  or  Good  Faith. 

CHAPTER  9. 
REMOVAL  OF  CAUSES— JURISDICTION  AND  PROCEDURE. 

190.  In  General. 

191.  Jurisdiction — First  Four  Classes  of  Removal  Cases. 

192.  x Class  One;  Removal  by  Defendant  or  Defendants  on  Ground  of  Fed 

eral  Question. 

193.  Class   Two;    Removal   by    Nonresident    Defendant   or    Defendants   on 

Ground  of  Diverse  Citizenship. 

194.  Class  Three;    Removal  of  a  Separable   Controversy   Wholly   Between 

Citizens  of  Different  States. 

195.  Procedure  on  Removal — Class  One,  Two    and  Three — Petition  for  Re- 

moval to  be  Filed  Before  Appearance  Day  in  State  Court. 

196.  Bond  on  Removal  in  Classes  One,  Two  and  Three. 

197.  Duty  of  State  Court  in  Such  Cases. 

198.  Notice  to  Adverse  Party  in  Such  Cases. 

199.  Procedure  After  Removal  in  Classes  One,  Two,  and  Three. 
2€0.     Class  Four;  Removal  on  Ground  of  Prejudice. 

201.  Remanding  Separable  Controversy  in  Class  Four. 

202.  Remanding  upon  Failure  to  Show  Prejudice — Class  Four. 

203.  Remanding  in  Classes  One,  Two,  Three    and  Four. 

204.  Common  Carrier  Employers'  Liability  Cases  not  Removable,  nor  for 

Property  Damages,  Unless  in  Excess  of  $3,000  Involved. 

205.  Class  Five;   Suits  Between  Citizens  of  a  State   Under  Land   Grants 

from  Different  States. 


XIV  TABLE  OF  CONTENTS. 

SEC. 

206.  Class  Six;  Removal  of  Suits  of  Aliens  Against  Officers. 

207.  Class  Seven;  Removal  of  Civil  Eights  Cases. 

208.  Habeas    Corpus    Proceedings    Where    Civil    Bights    Denied,    and    Othei 

Cases. 

209.  Class   Eight;    Bemoval   in   Cases   Against   Revenue   or   Congressional 

Officers. 

210.  Procedure  on   Eemoval   Under   Class   Eight — Cases   Against   Revenue 

or  Congressional  Officers. 

211.  Procedure  After  Eemoval  in  Class  Eight. 

212.  Certiorari    and    Habeas    Corpus     Proceedings    in    Class    Eight — Suits 

Against  Eevenue  or  Congressional  Officers. 

213.  Proofs  of  Eecords  When  Copies  Eefused  by  State  Court  Clerks. 

214.  Enforcement  of  Eeturn  of  Record  from  State  to  Federal  Courts. 

215.  Eemand  or  Dismissal  of  Case  Fraudulently  or  Improperly  Removed. 

216.  Provisional  Remedies  of  State  Court  Preserved — -Bonds  Given  in  State 

Suit — Valid  on  Eemoval. 

217.  Proceedings  After  Eemoval — Generally. 


CHAPTER  10. 

STATUTES  OF  LIMITATIONS. 

230.  In  General. 

231.  Capital  Offenses. 

232.  Offenses  not  Capital. 

233.  Unless  Fleeing  from  Justice. 

234.  Crimes  Under  Revenue  and  Slave-trade  Laws. 

235.  Crimes  Under  Internal  Revenue  Laws. 

« 

236.  Seduction  of  Female  Passenger  on  Vessel. 

237.  Violation  of  Naturalization  Laws. 

23$.  Penalties  and  Forfeitures  Under  Federal  Laws. 

239.  Penalties  and  Forfeitures  Under  Customs  Revenue  Laws. 

240.  Settlements  for  Customs  Duties. 

241.  Forfeiture  or  Penalty  Under  Copyright  'Laws— Criminal  Prosecutions. 

242.  Forfeiture  and  Damage  Suits  for  False  Claims  Against  United  States. 

243.  Claims  Against  United  States. 

244.  Recovery  of  Taxes  Wrongfully  Collected. 

245.  Suits  by  United  States  to  Vacate  Land  Patents. 

246.  Suits  by  United  States  to  Vacate  Railway  or  Wagon  Road  Patents. 

247.  Suits  by  Patentee  of  Lands  Patented  to  Indians. 

248.  Under  Employers'  Liability  Acts  and  Under  Act  Limiting  Hours  of 

Labor. 

249.  Action  for  Neglect  to  Prevent  Conspiracy  Against  Civil  Rights. 

250.  Infringement  of  Patent. 


TABLE  OF  CONTiSNTS.  XV 

SEO. 

251.  Infringement  of  Copyrights. 

252.  Liability  of  Stockholders  of  National  Banks. 

253.  Interstate  Commerce  Act. 

254.  Suspension  of  Statute  of  Limitations  Under  Trading  With  the  Enemy 

Act. 

CHAPTER  11. 

EVIDENCE. 

270.  In  General. 

271.  Statutes  of  United  States — Evidence  of — Little  and  Brown's  Edition. 

272.  Same — Supplement  of  Revised  Statutes. 

273.  Same — Richardson's  Supplement  of  Revised  Statutes. 

274.  Proof  State  and  Foreign  Legislative  Acts  and  State  Court  Records 

and  Proceedings. 

275.  Exemplified  Copies  Records  of  Public  Offices,  not  Appertaining  to  a 

Court  in  States  and  Territories. 

276.  Copies  of  Foreign  Records  Filed  in  Department   Offices  Relating  to 

Land  Titles  in  United  States. 

277.  Copies — Extracts  from  Journals  of  Congress  Certified. 

278.  Pamphlet  Copies  of  Statutes  and  Bound  Copies  of  Act*. 

279.  Printed  and  Bound  Copies  of  Acts. 

280.  Copies — Lost  or  Destroyed  Judicial  Records. 

281.  Restoration  of  Lost  or  Destroyed  Judicial  Records. 

282.  Copies — Lost  Supreme  Court  Record. 

283.  Restoration  of  Records — Service  of  Notice  on  Nonresidents. 

284.  Copies — Lost  Returns  and  Official  Papers — Judicial  Officers. 

285.  Restoration   of   Records   in   Which  United   States   are  Interested  by 

United  States  Attorneys. 

286.  Copies — Executive  Department  Records,  etc. 

287.  Copies — Solicitor  of  the  Treasury  Records,  etc. 

288.  Copies — Comptroller  of  the  Currency  Records,  etc. 

289.  Copies — National  Bank  Organization   Certificates. 

290.  Copies — Bonds,  Contracts,  and  Other  Papers  of  United  States  In  Set- 

tlement of  Accounts  with  Government. 

291.  Copies — Treasury,  War,  Navy,  Records  in  Suits  Against  Delinquents. 

292.  Same — Certification  of  Copies  to  be  Made  by  Secretary  or  an  Assist- 

ant Secretary  of  the  Treasury  under  Seal  of  Department. 

293.  Copies — Treasury  Department  Books  and  Proceedings  in  Embezzlement 

Suits. 

294.  Copies — Department  of  the  Interior. 

295.  Copies — Postoffice  Records. 

296.  Copy — Pestoffice  Department  Demand  on  Postmasters. 


XVI  TABLE  OF  CONTENTS. 

SEO. 

297.  Copies — Land  Office  Records — Certification  of. 

298.  Subpoena  Duces  Tecum  to  Register  of  Land  Office. 

299.  Copies — Commissioner   of   Indian   Affairs — Certification   of. 

300.  Copies — Patent  Office  Records,  Letters  Patent,  etc. 

301.  Copies — Foreign  Letters  Patent. 

302.  Copies — Printed  Copies  of  Specifications  and  Drawings  of  Patents. 

303.  Copies— Patent  Office  Records — Trademarks. 

304.  Copies — United  States  Consular  Records. 

305.  Cop'ies — United  States  Clerks'  New  Records  in  Certain  States. 

306.  Copies — United  States  Clerks'  New  Records — North  Carolina. 

307.  Judicial  Notice  Taken  of  the  Seal  of  the  Department  of  Commerce 

and  Labor. 

308.  Burden  of  Proof — Seizure  Cases  under  Customs  Duties  Laws. 

309.  Reports  of  Investigations  of  Accidents  from  Failure  of  Boilers — Not 

Admissible  in  Damage   Suits. 

310.  Government  Paramount  Title  does  not  Affect  Mining  Titles — Possessory 

Action. 

311.  Publication  of  Interstate   Commerce   Reports   and  Decisions   as  Evi- 

dence. 

312.  Proof  of  Signature  and  Handwriting. 

313.  Things  as  Evidence  Under  Alaska  Prohibition  Laws. 

314.  Sufficiency  of  Evidence  to  Convict  Under  Alaska  Prohibition  Laws. 

315.  Prima  Facie  Evidence  Under  District  of  Columbia  Prohibition  Law. 

316.  Same — Payment  of  Special  Taxes. 


CHAPTER  12. 

WITNESSES. 

330.  Competence  of  Witnesses  Determined  by  State  Laws. 

331.  Competency  of  Witnesses  in  Prosecutions  Under  Alaska  Prohibition 

Laws. 

332.  Perjury  not  Now  a  Disqualification. 

333.  Not  Disqualified  by  Claiming  Compensation  Under  Customs  Revenue 

Laws. 

334.  Officers  and  Informers  not  Disqualified  in  Suits  for  Fines,  Penalties, 

or  Forfeitures. 

335.  Immunity   of   Witnesses  in   Cases  Under    Commerce    and   Anti-trust 

Laws. 

336.  Immunity  in  Criminal  Cases. 

337.  Same — Testimony   Given   Before   Congress. 

338.  Defendant  as  Witness  in   Criminal   Proceedings. 

339.  Compulsory  Process  for  Witnesses  in  Criminal  Cases. 


TABLE  OP  CONTENTS.  IV11 

8EO. 

340.  Recognizance  of  Witnesses — Criminal  Case*. 

341.  Same — In  Vermont. 

342.  Same — On  Behalf  of  the  United  States  by  District  Attorney. 

343.  Subpoena  for  Witnesses  in  Another  District. 

344.  Subpoena  and  Attendance  of  Witnesses  for  United  States. 

345.  Subpoena  for  Witnesses  for  Indigent  Defendant  in  Criminal  Cases. 

346.  Enforcing  Attendance  and  Testimony  of  Witnesses. 

347.  Court's  Power  to  Punish  Witnesses  for  Contempt.       / 

348.  Fees  and  Mileage  of  Witnesses  Who  Testify  on  Letters  Rogatory. 

349.  Amount  of  Fees  and  Mileage  of  Witnesses. 

350.  Fees  and  Mileage  in  Certain  States — Double  Mileage  Prohibited. 

351.  Subpoena  for  Witnesses  in  Contested  Patent  Cases. 

352.  Enforcing  Attendance  and  Testimony  of  Witnesses  in  Patent  Cases. 

353.  Fees  of  Witnesses  in  Patent  Cases. 

354.  Subpoena  to  Witnesses  in  Claim  Cases  Against  United  States  Pend- 

ing in  Departments. 

355.  Enforcing  Attendance  and   Testimony  of  Witnesses  in   Claim   Cases 

Against   United   States   Pending  in   Departments. 

356.  Fees  of  Witnesses  in  Claim  Cases  Against  United  States  Pending  in 

Departments. 

357.  Compulsory  Attendance  of  Witnesses  Under  Interstate  Commerce  Act. 

358.  Compulsory  Attendance  of  Witnesses  Under-Income  Tax  Law. 

359.  Administration  of  Oaths. 

360.  Discovery  Under   Act   for  National  Security   and  Defense   Stimulating 

Agriculture. 

361.  Compelling    Attendance    of    Witnesses,    etc.,    Under    Act    Establishing 

Bureau  of  War  Bisk  Insurance, 


CHAPTER  13. 

DEPOSITIONS. 

370.  In  General.  ,1 

371.  Time  for  Taking  Depositions  at  Law. 

372.  Time  for  Taking  Depositions  in  Equity. 

373.  Same — Depositions  in  Equity  After  Issue. 

374.  Grounds   for   Depositions   in   Equity:    When    Allowed   by   Statute,   or 

for  Good  and  Exceptional  Cause. 

375.  Depositions  De  Bene  Esse — Conditions  for  Taking  and  Using. 

376.  Officers  Before  Whom  Depositions  De  Benc  Esse  may  be  Taken. 

377.  Notice  of  Taking  Depositions  De  Bene  Esse. 

378.  Compelling  Attendance   of   Witness — Depositions   De   Bene   Esse. 

379.  Mode  of  Taking  Depositions  De  Bene  Esse. 

380.  Equity  Rule  as  to  Form  of  Deposition. 


XVill  TABLE  OP   CONTENTS. 

SEO. 

381.  Equity  Rule  as  to  Objections  to  Evidence. 

382.  Equity  Rule  as  to  Signing  Deposition. 

383.  Delivery  into  Court  of  Depositions  De  Bene  Eug. 

384.  Depositions  Under  a  Commission. 

385.  Witnesses   Exempt  from  Attendance — Depositions  Under  a  Commission. 

386.  Compelling    Attendance    and    Testimony    of    Witnesses    for    Depositions 

Under  Commission. 

387.  Compelling  Production  of  Papers,  Written  Instruments,  Books  or  Docu- 

ments in  Taking  Depositions  Under  a  Commission. 

388.  Depositions  to  Perpetuate  Testimony  Under  State  Laws — Admissible  in 

Court's  Discretion. 

389.  Depositions  may  be  Taken  in  Mode  Prescribed  by  State  Law. 

390.  Depositions  in  Equity  Under  Court  Order  Before  Commissioner,  Master 

or  Examiner. 

391.  Same— Notice. 

392.  Deposition  in  Equity  Published  on  Filing. 

393.  Letters  Rogatory  or  Commissions  to  Take  Depositions  of  Witnesses  in 

Foreign  Countries. 

394.  Taking  Testimony  to  be  Used  in  Foreign  Countries. 

395.  Same — Witness  Need  not  Criminate  Himself. 

396.  Publicity  in  Taking  Depositions  in  Anti-trust  Cases. 


CHAPTER  14. 

COSTS  AND  FEES. 

400.  In  General. 

401.  Taxable  Costs  and  Fees. 

402.  Bill  of  Costs. 

403.  Same — Must  be  Verified. 

404.  Costs — Indigent  Parties. 

405.  Payment  of  Costs  and  Witness  Fees  for  Indigent  Defendant  in   Crim- 

inal Cases. 

406.  Costs  not  Allowed  for  Recovery  Less  Than  Five  Hundred  Dollars.  Where 

Amount  in  Controversy  Material  or  Libelant  Recovers  Less  Than 
Three  Hundred  Dollars. 

407.  Costs  Where  Cases  can  be  Consolidated. 

408.  Mode  .of  Recovery  of  Fees. 

409.  Fees  of  Attorneys,  Solicitors,  Proctors. 

410.  Attorney's  Liability   for  Costs  Vexatiously  Increased. 

411.  Fees — Salary — United  States  District  Attorney. 

412.  Clerks'  Fees. 

413.  Marshals'  Fees. 

414.  Attorneys,  Clerks  aad  Marshals'  Fees  Under  Civil  Rights  "Lam. 


TABLE  OF  CONTENTS.  lix 

SEC. 

415.  Fees  of  United  States  Commissioners. 

416.  Same — Under  Chinese  Exclusion  Laws. 

417.  Costs  and  Witness  Fees  in  Extradition  Cases. 

418.  Witnesses'  Fees. 

419.  Court  Officer  not  Entitled  to  Witness  Fees. 

420.  Witness  Fees  Depositions  in  District  of  Columbia. 

421.  Same — Under  Letters  Rogatory  from  a  Foreign  Country. 

422.  Witness  Fees  of  Seamen. 

423.  United  States  Liable  for  Only  Four  Witness  Fees  on  Preliminary  Crim- 

inal Examination. 

424.  Witness  Fees  in  Prize  Cases — How  Paid. 

425.  Juror  Fees — Grand  and  Petit. 

426.  Mode  of  Payment  Juror  and  Witness  Fees.- 

427.  Printer's  Fees. 

428.  Same— Folio  Defined. 

429.  Appraiser's  Fees  on  Execution  Sales. 

430.  No   Costs   Against  United   States  in  Internal  Revenue  Suits  upon   In- 

formation. 

431.  No  Costs  Against  Prosecutor  nor  for  Claimant  When  Reasonable  Cause 

for  Seizure. 

432.  Successful  Claimant  Entitled  to  Possession  When  His  Own  Costs  Paid. 

433.  Double  Costs  Against  Nonsuited  Plaintiff  in  Action  Against   Revenue 

Officer. 

434.  Defendant  Subjected  to  Fine,  Forfeiture  or  Conviction  Shall  Pay  Costs 

of  Prosecution. 

435.  Defendant  to  be  Awarded  Costs  if  Informer  on  Penal  Statute  Nonsuited 

or  Discontinues. 

436.  Informer  on  Penal  Statute  to  Pay  Costs  if  Nonsuit  or  Discontinuance. 

437.  Costs  in  Copyright  Suits. 

438.  Costs  on  Infringement  of  Patent. 


CHAPTER  15. 

AN  ACTION  AT  LAW— SUMMARY. 

450.  In  General. 

451.  Initial  Pleading. 

452.  Attachment  and  Garnishment. 

453.  Process. 

454.  Defensive  Pleading. 

455.  Amendment. 

456.  Continuances  and  Adjournments. 

457.  Consolidation. 


XX  TABLE  Otf  CONTENTS. 

SEC. 

458.  Trial  by  Jury. 

459.  Trial  by  Judge. 

460.  Depositions,  Evidence,  Witnesses. 

461.  Charge  to  Jury  and  Verdict. 

462.  Judgment  and  New  Trial. 

463.  Execution. 

CHAPTER  16. 

THE  INITIAL  PLEADING— LAW  ACTIONS. 

470.  Differences  Between  Federal  and  State  Initial  Pleadings. 

471.  Effect  of  Failure  to  Show  Jurisdietional  Grounds. 

472.  Effect  of  Erroneously  Beginning  as  a  Suit  in  Equity. 

473.  Legal  and  Equitable  Causes  of  Action  may  not  be  Joined. 

474.  Form  of  Initial  Pleading. 

CHAPTER  17. 

ATTACHMENT  AND  GARNISHMENT  IN  LAW  CASES. 

480.  Attachment  and  Garnishment — Adoption  of  State  Laws  Except  Against 

National  Banks. 

481.  Rules  by  Federal  Courts  Adopting  State  Attachment  Remedies. 

482.  Construction  of  State  Attachment  Statutes  by  State  Courts  Followed  in 

Federal  Courts. 

483.  Attachment  not  a  Basis  for  Substituted  Service,  but  Merely  a  Provi- 

sional Remedy. 

484.  Causes  of  Action  in  Which  Attachments  are  Authorized  Governed  by 

State  Law. 

485.  Property  Subject  to  Attachment — State  Laws  Govern. 

486.  Affidavit  for  Attachment  Should  Conform  to  State  Law. 

487.  Amendment  of  Affidavit  for  Attachment. 

488.  Bond  for  Attachment. 

489.  The  Writ  of  Attachment — Amendment,  §  948,  Rev.  Stats. 

490.  Lien  of  Attachment. 

491.  Priorities — Several  Attachments. 

492.  Delivery  Bond. 

493.  Third-party  Claims  Follow  StaAe  Laws. 

494.  Dissolution  of  Attachments  Under  §  933,  Rer.  Stats. — Conforms  to  State 

Laws. 

495.  Attachments  in  Postal  Suits. 

496.  Same — Application  for  Warrant  Under  §  925,  Rev.  Stats. 

497.  Same — Issuing  Warrant — Duties  of  Clerk  and  Marshal  Under  §  926,  Bev. 

Stats. 


TABLE  OP  CONTENTS.  XXI 

raa 

498.  Same — Ownership  of  Property — Trial  Under  §  927,  Rev.  Stats. 

499.  Same — Proceeds  of  Sale — Investment  Under  §  928,  Rev.  State. 

500.  Same — Publication  of  Warrant  Under  §  929,  Rerv.  Stats. 

501.  Same — Garnishees  of  Delinquents  in  Postal  Suits  Under  §  930,  Rev.  Stats. 

502.  Same — Discharge  of  Warrant  on  Giving  Bond   Under  §  931,  Rev.  Stats. 

503.  Same — Adoption  of  State  Attachment  Laws  and  Former  Practice  not 

Affected  by  Postal  Attachment  Laws. 

504.  Garnishment — General  Statement. 

505.  Effect  of  Garnishment. 

506.  Notice  of  Garnishment. 

507.  Persons  and  Property  Subject  to  Garnishment. 

508.  Issue  by  Garnishee. 

509.  Judgments  Against  Garnishee. 


CHAPTER  18. 

PROCESS  LAW  ACTIONS. 

.  v. 

520.  In  General. 

521.  When  Suit  is  Begun. 

522.  The  Forms  of  Process  for  the  Commencement  of  Suits,  Except  as  to 

Signature,  Teste  and  Sealing,  Conform  to  State  Practice. 

523.  Amendment  of  Process. 

524.  By  Whom  Process  is  Served. 

525.  Method  of  Service  of  Process. 

526.  Service  by  Publication  Under  §  57,  Jud.  Code. 

527.  Special  Appearance. 

528.  Suit  in  Forma  Pauperis. 


CHAPTER  19. 

DEFENSIVE  PLEADING  LAW  ACTIONa 

540.  In  General. 

541.  Time  and  Order  of  Pleading  Conform  to  State  Laws. 

542.  Default  Judgment. 

543.  Forms  of  Pleadings  Conform  to  State  Practice. 

544.  Sufficiency,  Scope  and  Manner  of  Pleading  Conform  to  State  Laws. 

545.  Equitable  Defenses  to  an  Action  at  Law. 

546.  Amendment  of  Pleading. 


XX11  TABLE  OF  CONTENTS. 

CHAPTER  20. 

CONTINUANCES  AND  ADJOURNMENTS. 

SEO. 

560.  Continuances — In  General. 

561.  Continuances  on  Death  of  Party. 

562.  Survival  of  Action. 

563.  Continuance  of  Suit  Against  Delinquent  in  Suit  for  Public  Moneys. 

564.  Continuances  of  Suits  Under  Postal  Laws. 

565.  Continuances  of  Suits  on  Debentures. 

566.  Continuances  of  Suits  Under  Tariff  Laws. 

CHAPTER  21. 

MISCELLANEOUS  INCIDENTAL  MATTERS. 

570.  Consolidation  of  Cases. 

571.  Discovery — At  Law. 

572.  Motion  and  Notice  to  Produce  Books  or  Papers  in  Civil  Suits  Under 

Customs  Revenue  Laws. 

573.  Dismissal  or  Nonsuit. 

574.  Verification — Oaths — Acknowledgments. 

CHAPTER  22. 

TRIAL— LAW  ACTION* 

580.  In  General. 

581.  Method  of  Trial  Under  §  566,  Rev.  Stats. 

582.  Cases  to  Which  Provision  not  Applicable. 

583.  Constitutional  Jury — Twelve  Men. 

584.  Qualifications  and  Exemptions — In  General. 

585.  Same — Under  Civil  Rights  Acts. 

586.  'Same — Penalty  for  Exclusion. 

587.  Exempt  After  Serving  Term  in  a  "Year. 

588.  Jurors — From  Where  Drawn. 

589.  Impaneling  Jurors. 

590.  Venire — Issuance  and  Return. 

591.  Talesmen  for  Petit  Juries. 

592.  Special  Juries. 

593.  Challenges. 

594.  Trial  by  Judge. 

595.  Mode  of  Proof — Law  Actions. 


TABLE  OF  CONTENTS. 

I 
BEG. 

596.  The  Taking  of  Exceptions  Doe*  not  Conform  to  State  Practice. 

597.  Time  for  Excepting  to  Rulings. 

598.  Conduct  of  the  Trial. 

599.  Charge  to  the  Jury — Instructions. 


CHAPTER  23. 

VERDICT— MOTION  FOB  NEW  TRIAL— BILL  OF  EXCEPTIONS. 

610.  Special  Verdict. 

611.  Form  and  Effect  of  General  Verdict. 

612.  Amendment  of  Verdict. 

613.  Motion  for  New  Trial. 

614.  Bill  of  Exceptions — Authentication,  Signing  and  Contents. 


CHAPTER  24. 

JUDGMENTS  AND  EXECUTION— LAW  ACTIONa 

Judgments — In  General. 
Executions — In  General. 

Judgments  at  Law  Generally  Conform  to  State  Practice. 
Interest  on  Judgments — Bate,  Allowance  of,  Levy  for — Conforms  to 
State  Law. 

624.  Judgments — Kind  of  Money  Payable  in  Suits  for  Duties. 

625.  Becord  of  Judgment  as  Bequired  by  State  Laws. 
*>26.     Indexes  of  Judgment  Becords. 

627.  Lien  of  Judgment — Manner  and'  Extent — Conform  to  State  Laws. 

628.  Lien  of  Judgment  or  Execution  not  Divested  by  Creation  of  a  New  Dis- 

trict or  Division,  nor  by  the  Division  or  Transfer  of  Territory. 

629.  Amendments  of  Judgment. 

630.  Vacation  of  Judgment  Governed  by  Federal  Decisions. 

631.  Executions  in  Common-law  Causes  Conform  to  State  Statutes  by  Bule  of 

Court. 

632.  Executions  not  to  Issue  Against  Bevenue  Officers  for  Moneys  Paid  into 

Treasury  on  Probable  Cause. 

633.  Execution — Stay  Pending  Motion  for  New  Trial — Vacation  of  Judgment 

by  Granting  New  Trial. 

634.  Execution — Stay  for  One  Term  Where  State  Law  Allows  Such  Stay. 

635.  Executions  may  Bun  and  be  Executed  in  Any  Part  of  a  State,  and  on 

Behalf  of  the  United  States  in  Any  Other  State  or  Territory. 

636.  Execution — Imprisonment  for  Debt — Modifications  of  State  Law  Adopted. 


XXIV  TABLE  OF  CONTENTS. 

SEC. 

637.  Execution — Discharge  from  Arrest  or  Imprisonment  in  Civil  Actions  Con- 

form to  State  Laws. 

638.  Execution — Imprisonment  for  Debt  in  Government  Suits — Discharge  of 

Poor  Debtor  Under  §  3471,  Rev.   Stats. 

639.  Same — Discharge  by  President  When  Secretary  of  Treasury  not  Author- 

ized. 
'640.     Execution — Sale  of  Eeal  Estate  or  Personal  Property — Place  of  Sale. 

641.  Execution — Sale  of  Real  Estate — Publication  of  Notice. 

642.  Execution — Sale  of  Real  Estate — Marshal's  Successor  to  Continue  Pro- 

ceedings.    . 

643.  Execution — Sale    of    Real    Estate    in    Government    Suits — Purchase    by 

Government. 

644.  Execution — Sale  of  Personal  Property — Appraisal  Under    §   993,  Rev. 

Stats.,  in  Same  Manner  as  Required  by  State  Law. 


CHAPTER  25. 

A  SUIT  IN  EQUITY— SUMMARY. 

The  Bin.    'V1^ 

.  Precipe  and  Subpoena. 

662.  Discovery — Interrogatories  by  Plaintiff. 

663.  Depositions  Under  Order  of  Court. 

664.  Return  of  Subpoena. 

665.  Time  for  Defensive  Pleading. 

666.  Hearing  of  Motion  to  Dismiss. 

667.  Time  for  Answer  After  Overruling  Motion  to  Dismiss. 

668.  Time  for  Answer  to  Amended  Bill. 

669.  Issue — When  No  Counterclaim  or  'Setoff. 

670.  Discovery — Interrogatories  by  Defendant. 

671.  Depositions  in  Special  Cases  After  Filing  the  Bill  Before  Issue  Joined. 

672.  "Counterclaim — Time  for  Serving  Copy  on  Other  Defendants. 

673.  Motion  to  Strike  Out  Defense. 

674.  Time  for  Reply. 

675.  Issue  When  Counterclaim  or  Setoff  is  Pleaded. 

676.  Trial  Calendar. 

677.  Depositions  After  Case  on  Trial  Calendar. 

678.  Continuances. 

679.  Reinstatement  of  Cases  Dropped  from  Calendar — Time  for. 


TABLE  OP  CONTENTS.  XXV 


CHAPTER  26. 

THE  BILL,  IN  EQUITY. 
SEO. 

690.  General  Statement. 

691.  Differences  Between  State  and  Federal  Statement  of  Cause  of  Action. 

692.  Contents  of  a  Bill  in  Equity— Equity  Rule  25. 

693.  Caption  of  the  Bill. 

694.  Citizenship  and  Residence  of  Parties. 

695.  Jurisdictional  Grounds. 

696.  Statement  of  Ultimate  Facts — The  Cause  of  Action. 

697.  Proper  Parties. 

698.  The  Prayer  of  the  Bill. 

699.  Signing  the  Bill. 

700.  Verifying  the  Bill 

CHAPTER  27. 

PARTIES. 

710.  Real  Party  in  Interest;  Necessary  Parties;  Intervention — Rule  37. 

711.  Defect  of  Parties  may  Cause  Dismissal  on  Court's  Own  Motion. 

712.  Real  Party  in  Interest — Capacity  of  Plaintiff  to  Sue. 

713.  Persons  Having  an  Interest  may  Join  as  Plaintiffs. 

714.  Party  Refusing  to  Join  as  Plaintiff  may  be  Made  a  Defendant. 

715.  Class  Suits— Rule  38. 

716.  Common  Interest  a  Material  Issue. 

717.  Representatives  of  a  Class. 

718.  Where  Parties  have  a  Representative  Others  may  not  Sue  Unless  Rep- 

resentative Refuses  to  Act. 

719.  Absence  of  Persons  Who  Would  be  Proper  Parties — Rule  39. 
720      Absence  of  Parties — Illustrations. 

721.  Nominal  Parties — Rule  40. 

722.  Heir  as  Party — Suit  to  Execute  Trusts  of  Will— Rule  41. 

723.  Joint  and  Several  Demands — Rule  42. 

724.  Saving    Rights    of    Absent    Parties    Where   Defendant    Makes    Tardy 
,  Objection — Rule  44. 

CHAPTER  28. 

INTERVENTION. 

730.  Intervention — Last  Part  Rule  37. 

731.  Intervention  Does  not  Lie  for  Unliquidated  Demands. 

732.  Citizenship  of  Intervener  and  Amount  of  Claim  not  Material  to  Juris- 

diction. 

733.  Procedure. 


XXVi  TABLE  OF  CONTENTS. 

CHAPTER  29. 

STOCKHOLDERS'  BILL. 
SEC. 

740.  The  Equity  Eule  —  No.  27. 

741.  Stockholders'  Bill  —  Old  and  New  Eules  Compared. 

742.  Same  —  Purposes  of  the  Eule. 

743.  Allegation  as  to  "Reason  for  not  Making  Such  Effort." 

744.  Where  Statutory  Receiver  has  Been  Appointed. 


CHAPTER  30. 

JOINDER  OF  CAUSES  OF  ACTION. 

750.  The  Equity  Eule—  No.  26. 

751.  Eule  Available  to  Both  Parties  Alike. 

752.  Examples  of  Joinder. 

753.  Causes  of  Action  must  be  Within  Court's  Jurisdiction  to  be  Joined. 


CHAPTER  31. 

AMENDMENTS. 

760.  Amendments — Eules  28  and  19. 

761.  Amendments  to  Cure  a  Variance. 

762.  Amendment — Where  Plaintiff  Fails  to  Set  Down  for  Argument  Objec- 

tion in  Answer  for  Defect  of  Parties — Rule  43. 

763.  Amendment  on  Death  of  Party — Rule  45. 


CHAPTER  32. 

SUPPLEMENTAL    PLEADING. 

770.  The  Equity  Rule — No.  34. 

771.  -  Supplemental   Pleading  Used   to   Bring  in   Matters   Occurring   Since 

Original  Pleading  Filed. 

772.  Allowance  of  Supplemental  Pleadings  in  Court's  Discretion. 

773.  Equity  Rule  35  as  to  Form  of  Supplemental  Pleading. 


TABLE  OP  CONTENTS.  XXV11 

CHAPTER  33. 
EEVIVOR. 


SEC. 

780.  The  Equity  Bule— No.  45. 

781.  Eevivor  may  be  Made  by  Motion. — Time. 

782.  Revival  in  Stockholder's  Suit. 


CHAPTER  34. 

PROCESS  IN  EQUITY. 

790.  The  Summons  in  Equity  is  the  Subpoena* 

791.  Issue  —  Form  —  Return  of  Subpoena. 

792.  The  Precipe. 

793.  The  Subpoena. 

794.  "Alias  Subpoenas. 

795.  Process  in  Behalf  of  and  Against  Persons  not  Parties., 

796.  Process  by  Whom  Served. 

797.  Manner  of  Serving  Subpoenas. 

798.  Forms  of  Returns. 

799.  Form  of  Process  and  Return  —  How  Governed. 

800.  Substituted  Service. 

CHAPTER  35. 

DECREE  PRO   CONFESSO. 

810.  Time  for  Defensive  Pleading  Twenty  Days  After  Service  of  Subpoena. 

811.  Default  When  Taken. 

812.  Pleading  Required  to  Save  from  Decree  Pro  Confesso. 

813.  Decree  Pro  Confesso  When  Made  Final. 


CHAPTER   36. 

DEFENSIVE  PLEADINGS—  EQUITY. 

820.  Kinds  of  Defensive  Pleading. 

821.  Motion  Day. 

822.  Notices. 

823.  Motions  Grantable  of  Course, 

824.  Defect  of  Parties. 

825.  Notice  of  Orders. 


XXV111  TABLE  OF  CONTENTS. 


CHAPTER  37. 

TRANSFERRING  TO  LAW  SIDE— ADEQUATE  REMEDY  AT  LAW. 

SEC. 

840.  Action  at  Law  Erroneously  Begun  as  Suit  in  Equity  to  be  Transferred 

to  Law  Side  Under  Rule  22. 

841.  Amendment  of  Pleadings  to  Conform  Action  to  Proper  Side  of  Court — 

Law  or  Equity. 

842.  Amendment  Setting  Up  a  New  Cause  of  Action  Does  not  Relate  Back  to 

Prevent  Bar  of  Statute  of  Limitations. 

843.  Motion  Should  be  to  Transfer  to  Law  Side  Under  Rule  22  or  to  Deter- 

mine  Questions   of  Law  Under   Rule   23,   and  not   to  Dismiss   Under  ' 
Rule  29. 

844.  Rules  22  and  23  Do  not  Change  Mode  of  Beginning  a  Suit  in  Equity. 

845.  Equity  Suits  not  Maintainable  Where  Legal  Remedy  Adequate. 

846.  What  is  an  Adequate  Remedy  at  Law. 

847.  Necessity  of  Mixed  Character  of  Remedies  Gives  Equity  Jurisdiction  as 

Legal  Remedy  Alone  is  not  Then  Adequate. 

848.  Where  Recovery  of  Money   is  Only  Relief  Sought   Remedy   at  Law   is 

Adequate. 

849.  Where  Account  may  be  Adjusted  by  Jury  Remedy  at  Law  Adequate. 

850.  Where  Remedy  at  Law  Does  not  Afford  a  Practical  and  Efficient  Result 

Equity  may  Take  Jurisdiction. 

851.  When  Legal  Remedy  Need  not  be  Exhausted  to  Maintain  Creditor's  Bill. 


CHAPTER  38. 
ADMINISTERING  LEGAL  RELIEF  IN  AN  EQUITABLE  SUIT. 

860.  The  Rule  in  Equity — No.  23. 

861.  Illustrations  —  Specific    Performance   and    Damages  —  Quiet    Title    and 

•Possession. 

862.  Court  may  Submit  Incidental  Issues  to  a  Jury. 

863.  Where*  Equitable  Jurisdiction  Wholly  Fails,  Equity  will  not  Retain 

Case  to  Determine  Legal  Issues. 

864.  The  Rule  Does  not  Permit  the  Joinder  of  Legal  and  Equitable  Claims 

to  Make  Up  the  Necessary  Jurisdietional  Amount  in  Controversy. 


CHAPTER  39. 
MOTION  TO  DISMISS  IN  POINT  OF  LAW. 

880.  Motion  to  Dismiss  Under  Equity  Rule  29. 

881.  Applies  to  Bankruptcy  Cases. 

882.  Admits  Allegations  of  Bill  Well  Pleaded. 


TABLE  OF  CONTENTS.  XXIX 

SEO. 

883.  A  Motion  to  Dismiss  is  in  Effect  a  Demurrer,  Evidence  not  to  be  Con- 

sidered. 

884.  Same — Defense  of  Another  Suit  Pending  cannot  be  Raised  on  Motion  to 

Dismiss. 

885.  Same — Defense   of   Special   Statute   of   Limitations   not   Allowed    on   a 

Motion  to  Dismiss. 

886.  Motion  to  Dismiss — Nonjoinder. 

887.  Defense  in  Bar  Set  Up  on   Motion  to  Dismiss. 

888.  Motion  to  Dismiss  on  Ground  of  Laches. 

889.  Judicial  Notice  in  Aider  of  Motion  to  Dismiss. 

890.  Motion  to  Dismiss  on  Plaintiff's  Answers  to  Interrogatories. 

891.  Illustration  of  Motion  to  Dismiss. 

CHAPTER  40. 

ANSWER  AS  A  PLEA. 

900.  The  Equity  Rule— No.  29. 

901.  Separate  Hearing  of  Answer  as  a  Plea. 

902.  Answer  as  a  Plea  may  be  Disposed  of  Either  as  an  Issue  of  Law  or  of 

Mixed  Law  and  Fact. 

903.  Answer  as  a  Plea  Should  also  Show  Defendant's  Other  Defenses — Should 

Set  Out  Defendant's  Whole  Defense. 

904.  On  Sustaining  of  Plea  Court  will  Dismiss  the  BUL 

CHAPTER  41. 

TO  OBTAIN  FTJBTHEB  AND  BETTER  STATEMENT  OR  PARTICULARS. 

920.  Definiteness  and  Certainty — Rule  20. 

921.  Bill  of  Particulars. 

922.  Is  a  Matter  of  Discretion. 

923.  Cannot  be  Used  to  Obtain  Information  of  Facts  Which  are  Matters  of 

Expert  Testimony. 

924.  Can    be    Used    to    Narrow    the    Issues    by    Requiring    Defendant    to 

Particularize. 

CHAPTER  42. 

STRIKING  OUT  REDUNDANT,  IMPERTINENT  OR  SCANDALOUS  MAT- 
TER UNDER  RULE  21. 

930.  Striking  Out— Rule  21. 

931.  Illustration  of  Impertinent  Matters. 

932.  Illustration  of  Scandalous  Matters. 

933.  Error  in  Striking  must  be  Corrected  by  Appeal  and  not  by  Mandamus. 


XXX  TABLE  OF  CONTENTS. 

CHAPTER  43. 

DISCOVERY. 

SEO. 

940.  The  Equity  Rule — No.  58. 

941.  Alters  Procedure  not  Principles  of  Discovery. 

942.  Not  a  Part  of  the  Pleadings  and  Waiver  of  Answer  Under  Oath  Does 

not  Relieve  from  Answering  Interrogatories. 

943.  General   Prayer    for   Discovery    in    Bill   not    Sufficient  —  Interrogatories 

Should  be  Filed. 

944.  Purpose  of  Rule  58  is  to  Obtain  Discovery  of  Facts  Material  to  Plain- 

tiff's Case  or  to  Defendant's  Defense,  not  Evidentiary  Matters,  nor  a 
Bill  of  Particulars. 

945.  Matters  Disclosed  in  the  Answer  Material  to  Plaintiff's  Case  are  Subject 

to  Interrogatories. 

946.  Interrogatories  as  to  Writings  as  a  Basis  for  Call  for  Productions. 

947.  Best  Evidence  Rule  Applicable  to  Interrogatories. 

948.  Interrogatories  may  not  be  Used  to  Discover  Evidence. 

949.  Interrogatories  may  not  be  Used  to  Require  Opinion  nor  Expert  Testi- 

mony. 

950.  Interrogatories  may  Test  Contested  Infringement. 

951.  A  Witness  is  not  Subject  to  Interrogatories. 

952.  As  to  Form  of  Objections  to  Interrogatories. 


CHAPTER  44. 

THE   ANSWER  AS  A   TRAVERSE. 

960.  General  Statement. 

961.  Some  Differences  in  Answers  in  Federal  and  State  Courts. 

962.  Answer  as  Such  is  not  Evidence. 

963.  Time  for  Answer. 

964.  Contents  of  Answer. 

965.  Rules  as  to  Form  of  Answer. 

966.  Amendment's. 

967.  Attacks  upon  Answer. 

968.  Reply — When  Required — When  Cause  at  Issue. 

969.  Setting  Down  for  Hearing  on  Bill  and  Answer. 

970.  Supplemental  Answer. 


TABLE  OP  CONTENTS.  XXII 

CHAPTER  45. 

COUNTERCLAIM  AND  SETOFF. 

an. 

980.  Counterclaim  and  Setoff  Under  Second  Paragraph  Equity  Rule  30. 

981.  Illustration  of  Counterclaim  Growing  Out  of  Same  Transaction — Un- 

fair Competition. 

982.  Setoff  or  Counterclaim  Subject  of  an  Independent  Equity  Suit  Against 

Plaintiff. 

983.  Cross-bill  Abolished. 

984.  Counterclaim   may  not  be   Used   to   Bring  in   New   Parties    nor    for 

Intervention. 

985.  Unliquidated    Damages    Unless    Arising    Out    of    the   Transactions   In- 

volved are  not  Matters  of  Counterclaim. 

986.  Effect  of  Failure  to  Plead  Counterclaim  or  Setoff. 

CHAPTER  46. 

MOTION  TO  STRIKE  OUT. 

1000.  Equity  Rule  33 — Motion  to  Strike  Out — Five  Day  Notice. 

1001.  Illustrative  Case  of  Motion  to  Strike  Out  Defense  as  Insufficient. 

1002.  Form  of  Motion  to  Strike  Out. 


CHAPTER  47. 

REPLY. 

1010.  Equity  Rule  31 — Reply  to  Setoff  or  Counterclaim — Issue. 

1011.  The  Scope  of  the  Reply. 


CHAPTER  48. 

DEPOSITIONS. 

1020.  Depositions — Rules  47,  54  and  55. 

1021.  Not  "Good  and  Exceptional  Cause"  to  Avoid  Several  Dnys  in  Trial. 

1022.  Time   for  Taking  Depositions — Rule  47   Governs   Unless  Conflicting 

With  §  863,  Rev.  State.,  et  seq. 

1023.  Extending  Time. 


XXX11  TABLE  OF  CONTENTS. 

CHAPTER  49. 
SETTING   FOE   TRIAL— CALENDAR. 

SEO. 

1030.  Rule  56  as  to  Case  Going  on  Trial  Calendar  and  Restricting  Taking 

Depositions  Thereafter. 

1031.  Sufficiency    of    Showing   of    Compliance    With    the    Rule    Restricting 

Depositions  After  Case  has  Gone  on  Trial  Calendar. 

1032.  Equity   Rule  57   Restricting  Allowance   of   Continuances   After   Case 

on  Trial  Calendar. 

1033.  Case   is  not  Dropped  from  the  Calendar  After  Hearing  but  Court 

may  Render  Decree  After  Term. 

CHAPTER  50. 

TRIAL— EQUITY  SUITS. 

1040.  In  General. 

1041.  Depositions  After  Issue  and  Affidavits  of  Expert  Witnesses  in  Patent 

and  Trademark  Cases. 

1042.  Mode  of  Proof  Under  §  862,  Rev.  Stats. 

1043.  Rulings  on  Admissibility  of  Evidence  Under  Equity  Rule  46. 

1044.  Appointment  of  a  Stenographer  Under  Equity  Rule  50. 

1045.  Affidavits  of  Expert  Witnesses — Patent  and  Trademark  Cases  Under 

Equity  Rule   48. 

1046.  Pleading  and  Proof  in  Actions  for  Infringement  Under  §  4920,  Rev. 

State. 

CHAPTER  51. 

MASTERS  IN  CHANCERY. 

1060.  Appointment  and  Compensation  Under  Equity  Rule  68. 

1061.  Reference  of  Exceptional  Matters  to,  Under  Equity  Rule  59; 

1062.  Notice  and  Hearing  of  Reference  Under  Equity  Rule  60. 

1063.  Regulation  and  Method  of  Proceedings  Under  Equity   Rules   62,   63 

and  64. 

1064.  Illustration  of  Exceptional  Matters. 

1065.  Ruling  as  to  Form  of  Accounts  Before  Master  Under  Equity  Rule  68. 


TABLE  OF  CONTENTS.  XXX1U 

CHAPTER  52. 
MASTER'S  REPORT. 

SCO. 

1070.  Master's  Report — Exceptions — Costs,  Under  Equity  Rules  61,  86,  67. 

1071.  Exceptions  to  Draft  Report,  not  Sufficient,  but  must  be  Filed  After 

the  Report  Itself  is  Filed. 

1072.  Report  Confirmed  if  No  Objections  Filed  but  Subject  to  be  Set  Aside 

on  Questions  of  Law. 

1073.  Master's  Conclusions  on  Matters  of  Fact  Presumed  Correct. 

1074.  Equity  Rule  66  Applies  to  Bankruptcy  Matters. 

1075.  Effect  of  Master's  Report  When  Reference  by  Consent  or  on  Stipulation. 

CHAPTER  53. 

RECEIVERS. 

1080.  Persons  Ineligible  to  Act  as  Receivers. 

1081.  Receivers  Manage  Property  According  to  State  Laws. 

1082.  Rights  of  Employees  on  Properties  in  Hands  of  Receivers  to  be  Heard 

on  Terms  of  Employment. 

1083.  Receivers— When  Suable  Without  Leave  of  Court. 


CHAPTER  54. 

INJUNCTIONS. 

1100.  Power  of  Federal  Courts  to  Issue  Writs — In  General. 

1101.  Injunctions — When  may  be  Granted  by  Justice  or  Judge  Instead  of  by 

Court. 

1102.  Injunctions  Under   the   Clayton   Act. 

1103.  Preliminary  Injunctions  and  Temporary  Restraining  Orders — Notice. 

1104.  Procedure  Where  Order  Granted  Without  Notice. 

1105.  Dissolution  and  Modification  of  Temporary  Restraining  Orders. 

1106.  Order  to  be  Filed  Forthwith. 

1107.  Injunction  Pending  Appeal. 

1108.  When  Proceedings  in  State  Courts  may  be  Stayed. 

1109.  Injunction  to  Restrain  Enforcement  of  State  Laws  on  Ground  of  Uncon 

stitutionality — By  Whom  Granted. 

1110.  Hearing  of  Application  in  Such  Cases — Notice. 

1111.  Appeal  from  Order  Granting  or  Denying  Injunction  in  Such  Cases. 

1112.  Enforcement  of  Injunction. 

1113.  Writs  of  Ne  Exeat — When  and  by  Whom  Granted. 


XXXIV  TABLE  OP  CONTENTS. 

\ 

SEO. 

1114.  Writs  of  Scire  Facias — By  What  Courts  Issuable. 

1115.  Power  of  Courts  to  Administer  Oaths  and  Punish  for  Contempt. 

1116.  Injunction    Restraining    Receivership     Proceedings    Against    Nationa! 

Banks. 

1117.  No  Interlocutory  Injunction  Against  National  Banks  in  State  Courts. 

1118.  Tax  Assessment  or  Collection  may  not  be  Enjoined. 

1119.  Injunctions  on  Distress  Warrant  Against  Officer  for  Failure  to  Account 

for  Public  Moneys — Procedure. 

1120.  Procedure  upon  Refusal  to  Grant,  or  on  Dissolution  of  Such  Injunction. 

1121.  Injunction  Against  Violation  of  Prohibition  Laws. 

1122.  Forma — Interlocutory  and  Perpetual  Injunctions. 

CHAPTER  55. 

DISMISSAL  BY  PLAINTIFF. 

1130.  Generally  Plaintiff  may  Dismiss  at  any  Time  Before  Decree   on  the 

Merits. 

1131.  After    Master's    Report    Filed    Voluntary    Dismissal    by    Plaintiff    not 

Allowed. 

CHAPTER  56. 
DECREE— EQUITY  SUITS. 

1140.  Rules  as  to  Form  of  Decree. 

1141.  Findings. 

1142.  Drafting  the  Decree. 

1143.  Enforcement. 

1144.  Enforcement  on  Conditions. 

1145.  Decree  Outside  the  Issues  Invalid. 

1146.  Retaining  Case  to  Afford  Complete  Relief. 

1147.  Lien  of  Decree  not  Divested  by  Creation  of  a  New  District  or  Division 

Nor  hj  the  Division  or  Transfer  of  Territory. 

CHAPTER  57. 

REHEARING. 

1160.     Correction  of  Mistakes — Rehearing — Equity  Rules  72  and  69. 
1161-     Allowance  of  Petition  for  Rehearing  at  Same  Term  at  Which  Decree 
Entered  Suspends  Decree  Until  Disposition  of  Petition. 

1162.  Petition  for  Rehearing  on  Newly  Discovered  Evidence. 

1163.  Rehearing  not  Granted  Where  New  Evidence  Known  When  Briefs 

were  Filed. 

1164.  Granting  a  Rehearing  a  Matter  of  Discretion. 


TABLE  OF  CONTENTS.  XXXV 

CHAPTER  58. 

BILL  OF  REVIEW. 


no. 

1180.  Function  of  Bill  of  Review. 

1181.  Time  for  Filing — Leave  of  Court. 

1182.  Form  of  Bill  of  Review. 


CHAPTER  59. 

CRIMINAL  JURISDICTION. 

1200.  Criminal  Jurisdiction  of  the  District  Court. 

1201.  Places  Within  Which  the  Criminal  Laws  of  the  United  States  Apply. 

1202.  Penal  Laws  Enforced  in,  and  Governing  the  Federal  Courts. 

1203.  Adoption  of  State  Penal  Laws  for  Reserved  Federal  Territory  Within 

State  Boundaries. 

1204.  State  and  Federal  Jurisdictions  of  Offenses. 

1205.  Jurisdiction  of  State  Courts  Under  State  Laws  not  Affected. 

1206.  Venue  of  Criminal  and  Penal  Prosecutions. 

1207.  Statutes  of  Limitations — Criminal  Cases. 


CHAPTER  60. 
GRAND  JURY. 

1220.  When  Grand  Jury  Summoned. 

1221.  Grand  Jury  to  have  not  Less  Than  Sixteen  nor  More  Than  Twenty-three 

Members —  Talesmen. 

1222.  Foreman  of  Grand  Jury. 

1223.  Discharge  of  Grand  Juries. 

1224.  Grand  Jury  Indictments  by  at  Least  Twelve  Jurora. 


CHAPTER  61. 

INDICTMENTS. 

1240.  Form  of  Indictment  for  Perjury. 

1241.  Form  of  Indictment  for  Subornation  of  Perjury. 

1242.  Form  of  Indictment  Before  a  Navy  Court-martial. 

124'3.     Joining  Charges   Against  a  Person  in  One   Indictment — Consolidation 
of  Indictments. 

1244.  Defects  of  Form  in  Indictment — Immaterial  Unless  Prejudicial. 

1245.  Judgment  Respondeat  Ouster  on  Demurrer  to  an  Indictment. 


XiXVl  TABLE  OF  CONTENTS. 


CHAPTER  62. 

ARREST  AND  BAIL— CIVIL  AND  CRIMINAL, 
SEO. 

1260.  Arrest — Imprisonment  —  Bail  —  Removal  for  Trial — Offenders  Against 

the  United  States. 

1261.  Marshal  Making   Arrest  to  Take  Prisoner  to   Nearest  Judicial  Officer 

and  Return  Before  Such  Officer  the  Warrant  With  Certified  Copy  of 
Complaint  Attached. 

1262.  Officers  Authorized  to  Hold  to  Security  of  the  Peace  and  for  Good  Be- 

havior. 

1263.  Bail  Admitted  in  Cases  not  Capital. 

1264.  Bail  Admitted  in  Capital  Cases  Only  by  Court  or  Judge. 

1265.  Bail  in  Criminal  Cases  Removed  by  Writ  of  Error  from  State  Court. 

1266.  Bail— Surrender  of. 

1267.  New  Bail  as  Better  Security. 

1268.  Recognizance — Remittance  of — Forfeiture  of. 

1269.  Copy  of  Writ — Jailer's  Authority  and  Original  Returned  With  Of- 

ficer's Return. 

1270.  Writ  for  Removal  of  Prisoner  from  One  District  to  Another. 

1271.  One  Writ  Sufficient  Where  Several  Indictments  Against  Same  Person. 

1272.  No  Writ  Necessary  to  Bring  into  Court  Person  in  Custody. 

1273.  Special  Bail  in  Suits  for  Duties  or  Penalties  in  States  Where  Imprison- 

ment for  Debt  not  Abolished. 

1274.  Committing  Defendant  Who  has  Given  Bail  in  Another  District. 

1275.  Same — Holding  Defendant  Until  Final  Judgment  in  First  Suit. 

1276.  Calling  Bail  in  Kentucky. 

1277.  Bail  de  Bene  Esse  by  Clerks  in  Absence  of  Judges. 


CHAPTER  63. 

EXTRADITION. 

1300.  When  and  by  Whom  Warrant  may  Issue  for  Arrest  of  Fugitive  from 

Justice   from   a   Foreign   Country. 

1301.  Person  Held  for  Extradition  Only  on  Evidence  Establishing  Probable 

Cause. 

1302.  No  Extradition  for  Political  Offense. 

1303.  Extradition  to  Foreign  Country  or  Territory  Occupied  or  Under  Control 

of  United  States  of  Persons  Committing  Certain  Offenses. 

1304.  Hearing  —  Certification  of  Testimony  t'o  Secretary  of  State  —  Warrant 

for  Commitment  Pending   Surrender. 

1305.  Hearing  to  be  Public  on  Land. 

1306.  Witnesses  for  Indigent  Prisoners. 


TABLE  OF  CONTENTS.  XXXV11 

SIC. 

1307.  Evidence  on  the  Hearing. 

1308.  Surrender'  of  Person  by  Secretary  of  State  for  a  Fair  and  Impartial 

Trial. 

1309.  Betaking  of  Escaped  Person  Held  for  Extradition. 

1310.  Time  Allowed  for  Extradition  Two  Months  After  Commitment. 

1311.  Extradition  Provisions  Continue  During  Existence  of  Treaty. 

1312.  Transportation   and    Protection    of   Person    Extradited   to    the   United 

States. 

1313.  Same — Powers  of  Agent  Receiving  Such  Persons  Extradited  from  For- 

eign Country. 

1314.  Same — Penalty  for  Opposing  Agent  or  Attempting  Rescue. 

1315.  Interstate  Extradition. 

1316.  Penalty  for  Resisting  Agent  or  Attempting  Rescue,  Interstate  Extra- 

dition. 

CHAPTER  64. 

HABEAS  CORPUS. 

1330.  Constitutional  Provision. 

1331.  Courts  Authorized  to  Issue  Writ  of  Habeas  Corpus. 

1332.  Power  of  Judges  to  Grant  Writs  of  Habeas  Corpus. 

1333.  Cases  Where  Federal  Writ  of  Habeas  Corpus  will  Issue. 

1334.  Application  for  Writ  of  Habeas  Corpus — How  Made. 

1335.  Allowance  and  Direction  of  Writ  of  Habeas  Corpus. 

1336.  Time  of  Return  of  Writ  of  Habeas  Corpus. 

1337.  Form  of  Return  of  Writ  of  Habeas  Corpus. 

1338.  Producing  the  Person. 

1339.  The  Day  for  Hearing. 

1340.  Denial  of  Return — Counter  Allegations — Amendments. 

1341.  Summary  Hearing — Disposition  of  Party. 

1342.  In  Cases  Involving  the  Law  of  Nations — Notice  to  be  Served  on  State 

Attorney  General. 

CHAPTER  65. 

ARRAIGNMENT  AND  TRIAL. 

1360.  How  Offenses  are  Prosecuted. 

1361.  Duty  of  District  Attorney  to  Prosecute. 

1362.  Standing  Mute— Plea  not  Guilty. 

1363.  Persons  Indicted  of  Treason  or  Capital  Offense  Entitled  to  Copy  of 

Indictment  and  List  of  Jurors  and  Witnesses. 

1364.  Persons  Indicted  for  Capital  Crimes  Entitled  to  Counsel  and  to  Com- 

pel Witnesses. 


XXXViii  TABLE  OP  CONTENTS. 

SEC. 

1365.  Accused  lias  Right  to  Trial  by  Jury. 

1366.  Peremptory  Challenges — Criminal  Cases. 

1367.  Excessiye  Peremptory  Challenges  in  Capital  Oases  Disregarded. 

1368.  Challenges  in  Prosecutions  for  Bigamy  or  Polygamy. 

1369.  Trial  of  Criminal  Cases. 


CHAPTER  66. 
VERDICT  AND  JUDGMENT  IN  CRIMINAL  CASES. 

1380.  Verdict  for  Less  Offense  Than  Charged. 

1381.  Verdict  Against  One  or  More  Several  Joint  Defendants. 

1382.  Qualified  Verdict  in  Cases  of  Murder  in  First  Degree  or  Rape. 

1383.  Execution  Postponed  in  Capital  Case  Carried  to  Appellate  Court. 

1384.  Judgments  for  Fines — How  Collected. 

1385.  Discharge  of  Indigent  Convicts  Imprisoned  for  Fines. 

1386.  Confinement  in  State  Jail  or  Penitentiary  When  Use  of  so  Allowed  by 

State  Law. 

1387.  Where  No  Penitentiary  or  Jail  Suitable  or  Available  Attorney  Gen- 

eral may  Designate  in  a  Convenient  State  or  Territory — Trans- 
portation of  Prisoners — Change  of  Place  to  Preserve  Health  or 
Custody  of  Prisoner  or  Because  of  His  Improper  or  Cruel  Treatment. 

1388.  Transportation  of  Criminals  to  Places  of  Imprisonment  by  Marshal. 

1389.  Confinement  of  Juvenile  Offenders  Under  Sixteen  in  House  of  Refuge. 

1390.  Confinement    of    Juvenile    Offenders   Under   Twenty    Separate    from 

Prisoners  Over  Twenty. 


CHAPTER  67. 

PARDON  AND  PAROLE. 

1400.  Mitigation  or  Remission  of  Fine,  etc.,  by  Secretary  of  Treasury  upon 

Summary  Investigation  by  District  Judge. 

1401.  Same — Rules  and  Mode  of  Proceeding  may  be  Prescribed  by  Secre- 

tary of  Treasury. 

1402.  Same — Penalty  of  Imprisonment  or  Removal  from  Office  Excepted — 

Preservation  of  Informer's  Right  to  Share  of  Fine,  etc. 

1403.  Execution  of  Death  Penalty. 

1404.  No  Corruption  of  Blood  or  Forfeiture  of  Estate. 

1405.  Whipping  and  Pillory  Abolished. 

1406.  Pardoning  Power  of  the  President. 

1407.  Parole  of  Prisoners. 


TABLE  OP  CONTENTS. 

CHAPTER  68. 

COURT  OF  CLAIMS. 
SEC. 

1430.  Organization. 

1431.  Sessions. 

1432.  Jurisdiction. 

1433.  Statute  of  Limitations. 

1434.  Rules  of  Practice. 

1435.  Witnesses. 

1436.  New  Trials. 

1437.  Settling  of  Accounts — Interest. 

1438.  Costs. 

1439.  Judgments  and  Their  Effects. 

1440.  Appeals. 

CHAPTER  69. 

COURT  OF  CUSTOMS  APPEALS. 

1450.  In  General. 

1451.  General    Appraisers — Board    of. 

1452.  Court  of  Customs  Appeals — Organization. 

1453.  Sessions. 

1454.  Jurisdiction. 

1455.  Time  for  Appeal  from  Board  of  General  Appraisers. 

1456.  Calendar. 

CHAPTER  70. 

CIRCUIT  COURT  OF  APPEALS. 

1470.  Judicial  Circuits. 

1471.  Organization,  Judges,  Marshals,  Clerks  and  Deputies. 

1472.  Terms. 

1473.  Rules  of  Procedure. 

1474.  Admission  to  Practice. 

1475.  Reports  of  Decisions. 


XI  TABLE  OF  CONTENTS. 

CHAPTER  71. 

APPELLATE  JUEISDICTION  OF  CIRCUIT  COURT  OF  APPEALS. 

SEC. 

1500.  Appellate  Jurisdiction. 

1501.  Appeal  and  Error  from  District  Courts  to  Circuit  Court  of  Appeals. 

1502.  Appeals   from  Interlocutory  Orders  in   Injunction   and   Receivership 

Proceedings  in  District  Courts. 

1503.  Appellate  and  Supervisory  Jurisdiction  in  Bankruptcy  Cases. 

1504.  Appeal  and  Error  from  the  United  States  Court  for  China. 

1505.  Appeals  and  Writs  of  Error  from  District  Court  for  Alaska. 

1506.  Place  of  Hearing  of  Appeals  and  Writs  of  Error  from  Alaska. 

1507.  Appellate  Jurisdiction  from  District  Court  Canal  Zone. 

1508.  Appellate  Jurisdiction — The  Danish  West  Indian  Islands. 

1509.  Appellate  Jurisdiction — Porto  Rico. 

1510.  Powers  and  Duties  of  Judges  upon  AppeaJ. 


CHAPTER  72. 

THE  SUPREME   COURT. 

1530.  Judges,  Clerks,  Deputies  and  Marshal. 

1531.  Supreme  Court  Reporter. 

1532.  Admission  to  Practice. 

1533.  Terms  and  Adjournments. 

1534.  Powers  and  Jurisdiction. 


CHAPTER  73. 

APPELLATE  JURISDICTION  OF  SUPREME  COURT. 

1550.  In  General. 

1551.  Appeals  from  District  Courts  Direct  to  the  Supreme  Court. 

1552.  What  Constitutes  a  Question  of  Jurisdiction. 

1553.  Rules   for  Determining  the   Respective   Jurisdiction   of   the    Circuit 

Courts  of  Appeal,  and  the  Supreme  Court  W'here  the  Jurisdiction 
of  the  Court  is  in  Issue. 

1554.  Appeals  from  Final  Sentences  and  Decrees  in  Prize  Causes. 

1555.  Cases  Involving  the  Construction  or  Application  of  the  United  States 

Constitution. 

1556.  Constitutionality  of  United  States  Law,  or  Validity  or  Construction 

of  Treaty  Drawn  in  Question. 


TABLE  OF  CONTENTS.  xli 

SEC. 

1557.  State  Law  or  Constitution  Claimed  to  Contravene  the  Constitution  of 

the  United  States. 

1558.  Clauses  3,  4,  and  5  of  §  238,  Judicial  Code. 

1559.  Appeal  and  Error — Circuit  Court  of  Appeals  to  Supreme  Court. 

1560.  Appellate  Jurisdiction  of  the  Supreme   Court  in  Cases  from   Court 

of  Claims. 

1561.  Appeal    and    Error    to    Supreme    Court    from    Hawaii,    Porto  Rico, 

Alaska,  Philippine  Islands,  District  of  Columbia  and  Bankruptcy 
Courts. 

1562.  Prohibition,  Mandamus  and  Other  Writs  to  Revise  and  Correct  Pro- 

ceedings in  Lower  Court,  and  Preserve  Jurisdiction. 


CHAPTER  74. 

REMOVAL    FROM    STATE    COURT    OF    LAST    RESORT    TO    UNITED 
STATES  SUPREME  COURT  BY  WRIT  OF  ERROR— JURISDICTION. 

1600.  In  General. 

1601.  Statute  Regulating  Removal  by   Writ   of  Error. 

1602.  Writ  of  Error  or  Certiorari  to  Review  State  Court  Decisions — Time 

for  Taking. 

1603.  What  Judgment  and  Decrees  Reviewable. 

1604.  Classification  of  Cases  Reviewable. 

1605.  Decision  of  State  Court  Involving  the  Validity  of  a  Federal  Treaty, 

Statute,    or    Authority,    Their    Validity    Having    Been    Drawn    in 
Question. 

1608.  Decisions  Involving  the  Validity  of  State  Statutes  Whose  Authority 
Drawn  in  Question  as  Repugnant  to  the  Federal  Constitution,  Laws, 
or  Treaties. 

1607.  Decisions  for  or  Against  Right,  Title,  Privilege,  or  Immunity  Claimed 

Under  United  States  Constitution,  Treaty,  Statute,  Authority,  or  Com- 
mission. 

1608.  General  Propositions  Flowing  from  §  237,  Judicial  Code. 

1609.  Procedure  on  Removal  from  State  Courts  of  Last  Resort. 


CHAPTER  75. 

APPEAL  AND  ERROR. 

1650.  In  General. 

1651.  Parties. 

1652.  Time  for  Writs  of  Error  or  Appeals  from  District  Courts  to  the  Su- 

preme Court  of  the  United  States. 

1653.  Time  for  Writs  of  Error  or  Appeals  to  Circuit  Courts  of  Appeals. 

1654.  Time  for  Appeals   to  Circuit  Courts  of   Appeals  from   Interlocutory 

Orders. 


xlii  TABLE  OP  CONTENTS. 

SEC. 

1655.     Time  for  Writs  of  Error  or  Appeals  from  Circuit  Courts  of  Appeals 

to  Supreme  Court. 
3656.     Time  to  Secure  Review  of  State  Court  Decisions. 

1657.  Procedure    on    Writs    of    Error    and    Appeals    to    Circuit    Courts    of 

Appeals  the  Same  as  to  Supreme  Court. 

1658.  Allowance  of  Writs  of  Error  or  Appeals. 

1659.  Amendment  of  Writ  of  Error. 

1660.  Writ  of  Error— By  Whom  Issued. 

1661.  Assignment  of  Errors  on  Writ  of  Error. 

1662.  Form  of  Assignment  of  Errors. 

1663.  Citation. 

1664.  Bond. 

1665.  No  Bond  Required  of  United  States. 

1666.  Supersedeas. 

1667.  Injunction  Pending  Appeal. 

1668.  Proceedings  in  Forma  Pauperis. 

1669.  Record  on  Error. 

1669a.  Transcript  on  Appeal  and  Error. 

1670.  Reduction  and  Preparation  of  Record  on  Appeal  and  Error  to  Su- 

preme Court. 

1671.  Reduction  and  Preparation  of  Record  Under  New  Equity  Rules. 

1672.  Printing  and  Filing  of  Record  on  Appeal  and  Error  to  Circuit  Courts 

of  Appeals. 

1673.  Printing   and   Filing   of   Record   on   Appeal    and    Error   to    Supreme 

Court — Use    of   Record  in    Circuit   Court   of   Appeals    as   Part   of 
Transcript. 

1674.  One  Record  Sufficient  When  Both  Parties  Appeal  to  Supreme  Court 

Direct. 

1675.  Time  for  Return  of  Appeals  and  Writs  of  Error. 

1676.  Summary  of  Procedure  on  Appeal  and  Error. 

1677.  Review    of    Final    Decisions    of    Circuit    Courts    of    Appeals    upon 

Certiorari. 

1678.  Certification  by  Circuit  Courts  of  Appeals  to  Supreme  Court. 

1679.  Appellate    Procedure  —  District   Courts    of    Alaska    t9    the    Supreme 

Court. 

1680.  Appellate  Procedure — Hawaii  and  Porto  Rico. 

1681.  Appellate  Procedure — From  Supreme  Court  of  Philippines. 

1682.  Appellate  Procedure — From  District  of  Columbia. 

1683.  Appellate  Procedure — From  District  of  Columbia  Where  Decision  of 

Circuit   Court    of    Appeals   is    Otherwise    Final. 

1684.  Certiorwri  Ninth   Circuit  to  Supreme  Court  in  Alaska  Cases. 

1685.  Procedure  After  Transcript  Reaches  Appellate  Court. 

1686.  No  Reversal  for  Error  in  Fact. 

1687.  Damages  and  Costs  on  Error. 

1688.  Dismissal    of    Appeal. 

1689.  Diminution  of  Record. 


TABLE  OF  CONTENTS. 


SEO. 

1690.  Mandate. 

1691.  Death  of  Party  After  Judgment,  but  Before  Appeal. 

1692.  Death  of  Party  During  Appellate  Proceedings. 

1693.  Mistake  as  to  Proper  Method  of  Review  not  Ground  for  Dismissal. 


CHAPTER  76. 

MISCELLANEOUS  PROVISIONS. 

1700.  Construction  of  Code. 

1701.  Definitions. 

1702.  Priority  of  Revenue  Cases  or  "Where  State  a  Party. 

1703.  Suits  Under  Revenue  and  Postal  Laws,  etc.,  Brought  in  Name  of  United 

States. 

1704.  District  Attorney's  Prosecution  of  Fraud  on  the  Revenue. 

1705.  Warrants  for  Searches  and  Seizures  Under  Customs  Laws. 

1706.  Procedure  in  Seizure  Cases  Under  Customs  Laws. 

1707.  Bailing  Property  Seized  Under  Customs  Laws. 

1708.  Property  Taken  Under  Revenue  Laws  Irrepleviable. 

1709.  Credits  Allowed  in  Government  Suits  Against  Individuals. 

1710.  Credits  Allowed  in  Government  Suits  Under  Postal  Laws. 

1711.  Interest  in  Postal  Suits  OB  Balances  Due. 

1712.  Sale  after  Condemnation  Under  Revenue  Laws. 

1713.  Paying  Money  into  Court. 

1714.  Withdrawal  of  Money  Paid  into  Court. 

1715.  Liens  on  Vessels  for  Repairs,  Supplies  or  Other  Necessaries — Procedure 

in  Bern. 

1716.  Seizing  and  Detaining  Letters,  etc.,  Carried  Contrary  to  Law. 

1717.  Same — Disposition  of  Seizures. 

1718.  Mandamus  to  Compel  Obedience  to  Provisions  of  Interstate  Commerce 

Act  Respecting  Securing  Information  Concerning  Stocks,  Bonds  and 
Other  Securities. 

1719.  Trading  With  the  Enemy  Act — Jurisdiction  of  District  Court 
17£0.     Same — Courts  Philippine  Islands  and  Canal  Zone. 

1721.  Limitation  on  Suits  by  Alien  Enemy. 

1722.  Suits  by  Enemy  Against  Licensee  Relative  to  Patents,  Trademarks, 

Prints,  Labels  and  Copyrights  Under  Trading  With  the  Enemy  Act. 

1723.  Same — Against   Others   Than   Licensee. 

17^4.     Action   on  Claim   Against  Bureau   War  Risk  Insurance. 

1725.  Jurisdiction  of  Prosecutions  Under  Act  for  National  Security  and  De- 

fense Production,  Conservation  and  Distribution  of  Food  Products 
and  Fuel. 

1726.  Civil  Action  Under  Liquor  Laws  of  District  of  Columbia  for  Injuries 

by  Intoxicated  Person  or  in   Consequence  of  Intoxication. 

1727.  Condemnation  Proceedings — Land  for  Military  Purposes. 

1728.  Condemnation  Proceedings  for  Harbor  Improvements. 


TABLE  OF  CONTENTS. 


APPENDIX. 

PAGE 

The  Judicial  Code  as  Amended  to  Oct.  6,  1917  ......................  661 

Rules  of  the  United  States  Supreme   Court  ...........................   817 

Rules  of  the  United  States  Circuit  Court  of  Appeals  .................  845 

Rules  in  Admiralty  United  States  Circuit  Court  of  Appeals  ...........   961 

Equity  Rules  in  Force  February  lat,  1913,  Compared  With  Old  Equity 

Rules    ...  ......................................................  &71 

Tables  of  Statutes,  Code  Sections,  Rules  and  Constitutional  Provisions 

Quoted  or  Cited  Herein  .........................................  1023 

a.  Revised  Statutes  of  the  United  States  ...........  .  ............  1025 

b.  Judicial  Code  Sections  .......................................  1029 

c.  Criminal  Code  Sections  ........................................  1031 

d.  Chronological  Table  of  Acts  of  Congress  Other  Than  Revised 

Statutes  and  Code  Sections  ................................  1032 

e.  Supreme  Court  Rules  .........................................  1034 

f  .  Circuit  Courts  of  Appeals  Rules  .............  .  ................  1034 

g.  Equity   Rules  ............................  .  ...................  1035 

h.  Constitutional   Provisions  .....................................  1036 

i.  Amendments  to  the  United  States  Constitution  .................  1036 


INDEX. 

(Pages  1039  to  1222) 


MONTGOMERY'S  MANUAL 

OF 

FEDERAL  PROCEDURE. 


CHAPTER  1. 

THE  FEDERAL  JUDICIAL  SYSTEM. 

8EC. 

1.  Functions  of  the  Federal  Courts. 

2.  Federal  Jurisdiction  Limited. 

3.  Judicial  Power  Under  the  United  States  Constitution. 

4.  Federal  Courts  Enumerated. 

5.  Federal  Procedure  at  Law  and  in  Equity. 

6.  Differences  in  Procedure  at  Law  and  in  Equity  in  the  Federal  Courts. 

7.  Actions  at  Law — Wherein  Conform  to  State  Practice. 

8.  Suits  in  Equity — Rules  of  Procedure. 

9.  Possibility  of  a  Federal  Blended  Procedure. 

10.  Differences  Between  Federal  and  State  Court  Procedure. 

11.  Why  a  Special  Study  of  Federal  Procedure  Required. 

12.  Desirability  of  Special  Study  of  Federal  Procedure. 

§  1.  Functions  of  the  Federal  Courts.  Cases  arising  under 
the  constitution  or  laws  of  the  United  States,  or  in  which  the 
United  States  or  some  state  might  be  a  party,  ought  to  be  insured 
a  uniformity  of  decision  impossible  to  obtain  with  a  number  of  in- 
dependent state  judicial  systems  such  as  exist  in  the  United  States. 
Likewise  for  the  sake  of  uniformity  and  also  to  insure  national  dig- 
nity and  sanction,  cases  arising  under  treaties,  affecting  ambassa- 
dors and  other  public  ministers  and  consuls,  and  cases  of  admiralty 
and  maritime  jurisdiction,  should  be  determinable  in  national  or 
federal  courts.  These  cases  are  said  to  involve  federal  questions 
(chapter  6,  post),  and  belong  to  one  of  the  two  classes  of  cases  ex- 
pressed by^the  federal  constitution  as  included  in  the  judicial 
power  of  the  United  States.  (Art.  3,  §  2,  cl.  1,  U.  S.  Const.,  quoted 
P»st,  §  3.) 

Manual— 1  (1) 


§§  2-3,  Ch.  1  MANUAL  OF   FEDERAL  PROCEDURE.  2 

There  also  exists,  where  there  are  state  sovereignties  with  courts 
more  or  less  subject  to  local  prejudice  or  political  control,  the 
necessity  of  impartial  tribunals  independent  of  local  influence  to 
determine  controversies  between  citizens  of  different  states  or  be- 
tween the  citizens  of  a  state  and  aliens.  Therefore,  the  federal 
courts  are  vested  with  a  certain  jurisdiction  in  cases  of  diverse 
citizenship.  (Chapter  7,  post.} 

The  judicial  power  of  the  United  States  extends  to  cases  involv- 
ing (1)  federal  questions,  (2)  diverse  citizenship. 

§  2.  Federal  Jurisdiction  Limited.  The  theory  that  the  United 
States  government  created  by  the  constitution  is  one  of  limited 
and  enumerated  powers,  and  that  the  constitution  is  the  measure 
and  test  of  the  powers  conferred,1  applies  with  as  much  force  to 
its  judicial  as  to  its  executive  and  legislative  powers. 

At  the  time  of  the  adoption  of  the  constitution  the  several  states 
had  their  own  systems  of  courts,  which  had  general  jurisdiction 
over  persons  and  things  within  their  territorial  limits.  Whatever 
judicial  powers  were  not  conferred  on  the  federal  judiciary  were 
withheld,  and  belonged  to  the  several  states  or  the  people  thereof. 

Therefore,  in  prosecuting  or  defending  any  litigation  in  the  fed- 
eral court  it  must  always  be  remembered  that  "the  jurisdiction  of 
the  federal  court  is  a  limited  one,  depending  either  upon  the  exist- 
ence of  a  federal  question  or  diverse  citizenship  of  the  parties. 
Where  these  elements  of  jurisdiction  are  wanting,  it  cannot 
proceed,  even  with  the  consent  of  the  parties."2 

§3.    Judicial  Power  Under  the  United  States  Constitution. 

The  constitution,  in  defining  the  judicial  power  of  the  federal 
courts,  recognized  both  classes  of  cases  mentioned  in  the  preceding 
section,  (1)  those  involving  federal  questions,  and  (2)  'those  where 
there  might  be  a  diversity  of  citizenship. 

1  Calder  v.  Bull,  3  Dall.   (U.  S.)   386,  1  L.  Ed.  648;  Gibbons  v.  Ogden,  9 
Wheat.  (U.  S.)  187,  6  L.  Ed.  68;  United  States  v.  Cruikshank,  92  U.  S.  542, 
550,  23  L.  Ed.  588. 

2  Kardo  Co.  v.  Adams,  231  Fed.  950,  956,  146  C.  C.  A.  146,  quoting  Byers 
v.  McAuley,  149  U.  S.  608,  37  L.  Ed.  867,  13  Sup.  Ct.  906,  910. 


3  THE  FEDERAL  JUDICIAL  SYSTEM.  Ch.  1,  §  4 

Art.  3,  §  2,  cl.  1,  U.  8.  Const.  "The  judicial  Power  shall 
extend  to  all  Cases,  in  Law  and  Equity,  arising  under  this  Con- 
stitution, the  Laws  of  the  United  States,  and  Treaties  made, 
or  which  shall  be  made,  under  their  Authority; — to  all  Cases 
affecting  Ambassadors,  other  public  Ministers,  and  Consuls; 
to  all  Cases  of  admiralty  and  maritime  Jurisdiction ; — to  Con- 
troversies to  which  the  United  States  shall  be  a  Party; — to 
Controversies  between  two  or  more  States; — between  a  State 
and  Citizens  of  another  State; — between  citizens  of  different 
States; — between  citizens  of  the  same  State  claiming  Lands 
under  Grants  of  different  States,  and  between  a  State,  or  the 
Citizens  thereof,  and  foreign  States,  Citizens  or  Subjects." 
(11  U.  S.  Comp.  Stats.  1916,  p.  14,015  et  seq.) 

On  account  of  the  tender  consideration  of  states'  rights,  the 
above  provision  was  modified  as  follows : 

lltJi  Amendment,  U.  8.  Const.  "The  Judicial  power  of  the 
United  States  shall  not  be  construed  to  extend  to  any  suit  in 
law  or  equity,  commenced  or  prosecuted  against  one  of  the 
United  States  by  Citizens  of  another  State,  or  by  Citizens  or 
Subjects  of  any  Foreign  State."  (11  U.  S.  Comp.  Stats.  1916, 
p.  14,422  et  seq.) 

§4.    Federal  Courts  Enumerated. 

Art.  3,  Part  §  1,  U.  8.  Const.  "The  judicial  Power  of  the 
United  States  shall  be  vested  in  one  supreme  Court,  and  in 
such  inferior  Courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish."  (11  U.  S.  Comp.  Stats.  1916,  p.  13,906 
et  seq.) 

District  courts.  Each  state  in  the  United  States  constitutes  one 
or  more  federal  judicial  districts  in  each  of  which  is  located  a  fed- 
eral district  court.  These  courts  are  the  federal  courts  of  general, 
original  jurisdiction.  The  consideration  of  their  jurisdiction,  prac- 
tice and  procedure  occupies  the  first  and  larger  part  of  this  book. 
The  other  inferior  and  appellate  courts,  are  treated  respectively  in 
separate  chapters  devoted  to  each. 

Court  of  Claims  (chapter  68,  post),  with  five  judges,  sits  at 
Washington  to  take  jurisdiction  of  claims  against  the  United  State? 
other  than  pensions  and  sounding  in  tort. 


§  5,  Ch.  1  MANUAL  OF  FEDERAL  PROCEDURE.  4 

Court  of  Customs  Appeals  (chapter  69,  post),  with  five  judges, 
sits  at  Washington  and  may  also  sit  in  the  several  circuits.  It  re- 
views decisions  of  the  board  of  general  appraisers  under  the  cus- 
toms and  duties  or  tariff  laws. 

Circuit  Court  of  Appeals  (chapters  70  and  71,  post)  consist  of 
three  or -more  judges  for  each  circuit.  A  justice  of  the  supreme 
court  is  also  assigned  to  each  circuit,  and  district  judges  may  be 
assigned  to  sit.  These  courts  have  final  appellate  jurisdiction  over 
the  district  courts  within  their  respective  circuits,  except  where  a 
direct  appeal  is  allowed  exclusively  to  the  supreme  court  or  on 
certification  of  a  question  from  the  circuit  court  of  appeals  to  the 
supreme  court. 

Supreme  court  (chapters  72  and  73,  post),  with  nine  judges,  sits 
at  Washington.  -It  has  original  jurisdiction  of  matters  in  which  a 
state  is  a  party,  and  of  cases  brought  by  ambassadors  or  other  public 
ministers  or  in  which  a  consul  or  vice-consul  is  a  party.  It  has 
original  and  exclusive  jurisdiction  of  cases  between  states  and  be.- 
tween  a  state  and  the  United  States,  and  of  cases  against  ambassa- 
dors, other  public  ministers  and  their  domestics.  It  has  appellate 
jurisdiction  on  writ  of  error  or  appeal  from  the  district  courts  in 
certain  cases,  and  on  writ  of  error  from  the  courts  of  last  resort  of 
the  several  states  in  certain  cases.  It  has  appellate  jurisdiction  of 
certain  cases  from  the  circuit  court  of  appeals,  court  of  claims, 
from  United  States  district  court  and  supreme  court  of  Porto 
Rico,  the  supreme  court  of  Hawaii,  district  court  of  Alaska,  the 
supreme  court  of  the  Philippine  Islands,  the  court  of  appeals  of 
the  District  of  Columbia,  and  certain  cases  where  a  territory  has 
become  a  state. 

§  5.  Federal  Procedure  at  Law  and  in  Equity.  In  the  Federal 
courts  there  are  two  systems  of  pleadings  and  practice,  viz.,  law 
and  equity.  The  same  judge  may  sit  at  one  time  as  a  law  judge 
and  try  a  case,  with  a  jury  to  determine  questions  of  fact,  and  at 
another  time  he  may  sit  as  a  chancellor  or  equity  judge  determiri- 


5  THE  FEDERAL  JUDICIAL  SYSTEM.  Ch.  1,  §  6 

iiiLT  the  questions  of  law  and  fact  without  a  jury,  unless  he  calls 
one  in  an  advisory  capacity.  As  an  equity  judge  he  will  not  give 
an  equitable  remedy  if  the  remedy  at  law  is  adequate,  but  under 
new  Equity  Rule  22,  he  may  transfer  the  case  to  the  law  side,  if 
improperly  brought  on  the  equity  side,  instead  of  dismissing  as 
formerly.  (See  chapter  37,  post.) 

The  federal  constitution,  in  various  provisions,  recognizes  arid 
fixes  the  distinction  between  common  law  and  equity,  especially 
in  the  seventh  amendment  preserving  the  right  of  trial  by  jury  in 
suits  at  common  law  where  the  value  in  controversy  shall  exceed 
twenty  dollars. 

This  double  system  was  inherited  from  England,  where  formerly 
there  were  separate  courts  of  law  and  equity,  with  a  chancellor  or 
equity  judge  sitting  on  the  equity  bench  and  a  common-law  judge 
on  the  common-law  bench. 

In  most  of  the  states  to-day  the  same  form  of  action  is  used  in 
an  equity  case  as  in  a  law  case  and  the  system  is  a  blending  of  law 
and  equity.  But  the  main  distinctions  between  law  and  equity 
are  nevertheless  maintained:  (1)  Preserving  the  right  to  trial  by 
jury  in  law  cases;  (2)  refusing  to  give  equitable  remedies  where 
the  legal  remedies  of  possession  or  compensation  are  adequate ;  and 
(3)  enforcing  equitable  decrees  in  certain  cases  by  process  for 
contempt  for  neglect  or  refusal  to  obey. 

The  reason  for  the  original  separation  of  the  two  systems  is 
historical  and  not  in  the  inherent  nature  of  these  branches  of  the 
law,  but  it  seems  that  the  distinction  will  remain  an  essential  ele- 
ment of  our  system,  even  in  the  blended  or  reform  procedure,  so 
long  as  the  right  to  trial  by  jury  is  preserved  for  common-law  cases. 

Congress  by  the  adoption  of  the  act  of  March  3,  1915,  c.  90, 
adding  §  274b  to  the  Jud.  Code,  has  already  taken  a  long  step 
forward  in  progress  toward  the  reform  system  of  pleading,  open- 
ing a  way  for  further  legislation  after  the  act  has  been  more 
fully  subjected  to  the  tests  of  practice.  (See  §  545,  post.) 


§  7,  Ch.  1  MANUAL  OP  FEDERAL  PROCEDURE.  6 

§  6.  Differences  in  Procedure  at  Law  and  in  Equity  in  the 
Federal  Courts.  In  the  Federal  courts  an  action  at  law  differs 
from  a  suit  in  equity  in  a  number  of  particulars,  in  the  main  as 
follows : 

(1)  Pleading:  At  law,  conforms  "as  near  as  may  be"  to  state 
practice;  in  equity  is  governed  by  equity  rules.  (2)  Trial:  At  law, 
defendant  entitled  to  a  jury  to  determine  issues  of  fact ;  in  equity, 
issues  both  at  law  and  fact  are  determined  by  the  judge.  (3)  Re- 
lief granted:  At  law,  compensation  or  possession;  in  equity,  pre- 
ventive, specific,  foreclosure,  receiverships  and  all  other  remedies 
except  legal,  but  including  compensation  and  possession  as  inci- 
dental to  the  equitable  relief  sought.  Equitable  remedies  are  not 
given  where  legal  remedies  are  adequate  and  complete.  (4)  En- 
forcing final  orders:  A  judgment  at  law  is  enforceable  by  execution 
and  writ  of  assistance;  equitable  decree  by  execution  for  money 
judgments,  by  contempt  proceedings  for  specific  or  preventive 
relief  when  necessary  under  Equity  Rule  8,  and  writ  of  assistance 
for  possession  under  Equity  Rule  9.  (Chapter  56,  post.)  (5) 
Review  in  appellate  court :  At  law,  by  writ  of  error ;  in  equity,  by 
appeal.  (Chapter  75,  post.) 

§7.  Actions  at  Law — Wherein  Conform  to  State  Practice. 
Generally  speaking,  an  action  at  law  is  an  action  wherein  is  sought 
the  remedy  of  possession  or  compensation  without  any  equitable 
incidents  requiring  the  aid  of  equity. 

Among  the  equitable  incidents  requiring  the  aid  of  equity  are 
fraud,  accident,  mistake,  trusts,  the  necessity  of  avoiding  a  multi- 
plicity of  suits,  and  the  inadequacy  of  the  legal  remedies. 

Under  §  914  et  seq.  of  the  Revised  Statutes,  the  conduct  of  an 
action  at  law  conforms  "as  near  as  may  be"  to  that  existing  at 
the  time  in  like  causes  in  the  courts  of  record  of  the  state  within 
which  such  district  court  is  held.  Chapter  15,  post,  summarizes 
the  proceedings  in  a  law  action  with  reference  to  conformity  to 
state  practice. 

Pleading  and  practice  in  a  law  case  in  the  federal  courts  are 
governed  by  the  state  statutes  and  state  court  rules,  except  in  those 


7  THE  FEDERAL  JUDICIAL  SYSTEM.  Ch.  1,  §§  8-9 

matters  (1)  where  there  has  been  congressional  action  by  statutory 
enactments,  or  (2)  which  involve  the  judge's  personal  administra- 
tive powers,  or  (3)  wheTe  the  federal  district  court  rules  have 
established  such  minor  changes  as  the  difference  in  jurisdiction  and 
organization  of  the  state  and  federal  courts  may  require. 

In  addition  to  a  good  cause  of  action  there  must  always  be  an 
affirmative  showing  (1)  of  ground  of  federal  jurisdiction;  (2) 
that  the  requisite  amount  in  controversy  is  involved,  which  in 
cases  of  concurrent  jurisdiction  with  the  state  courts  must  exceed, 
exclusive  of  interest  and  costs,  the  sum  or  value  of  three  thousand 
dollars,  except  in  certain  cases  set  out  in  §  24  of  the  Judicial  Code ; 
(3)  that  the  action  is  one  at  law  as  distinguished  from  equity; 
and  it  should  also  appear  (4)  that  the  venue  of  the  action  is  prop- 
erly laid  under  the  federal  statutes. 

§  8.  Suits  in  Equity — Rules  of  Procedure.  Suits  in  equity  are 
governed  by  the  equity  rules  promulgated  by  the  United  States 
supreme  court,  under  §  917,  Revised  Statutes,  with  such  minor 
variations  not  inconsistent  with  those  rules  as  the  district  judges, 
with  the  concurrence  of  a  majority  of  the  circuit  judges  for  the 
circuit,  may  from  time  to  time  establish  under  Equity  Rule  79  and 
under  §§  913  and  918,  Revised  Statutes.  Chapter  25,  post,  gives 
the  main  steps  in  an  equity  suit  under  these  rules. 

In  a  suit  in  equity,  as  in  an  action  at  law,  regard  must  be  paid 
to  (1)  the  ground  of  federal  jurisdiction,  (2)  that  there  is  the 
requisite  amount  in  controversy.  (3)  that  the  cause  is  equitable  as 
distinguished  from  legal,  (4)  and  the  proper  venue. 

• 

§  9.  Possibility  of  a  Federal  Blended  Procedure.  To  estab- 
lish ar  federal  blended  procedure  it  would  seem  that  very  few 
rules  would  be  required  for  a  law  action  additional  to  those 
now  existing  for  the  conduct  of  a  suit  in  equity.  It  would  be 
necessary  to  make  provision  (1)  to  preserve  the  right  of  a  jury 
trial  for  questions  of  fact  in  law  actions;  (2)  to  adjust  the  giving 
of  equitable  remedies  and  legal  remedies  in  the  same  suit  or  sepa- 
rate suits  determinable  at  the  same  time;  and  (3)  to  provide  for 


§  10,  Ch.  1  MANUAL  OF  FEDERAL  PROCEDURE.  8 

the  enforcement  of  state  statutory  remedies  wherein  same  may  not 
be  conformable  to  the  federal  practice.  The  adoption  of  such  a 
system  would  be  a  strong  influence  "toward  uniformity  and 
simplicity  in  state  systems. 

A  remarkable  innovation  in  federal  procedure  has  been  created 
by  the  act  of  March  3,  1915,  chapter  90,  adding  §  274b  to  the  Jud. 
Code,  permitting  equitable  defenses  to  an  action  at  law  (quoted 
and  annotated  §  545,  post).  This  is  a  great  step  toward  the  aboli- 
tion of  the  distinction  between  the  two  systems  of  pleading  and 
practice,  and  establishing  in  the  federal  courts  the  reform  mode  of 
procedure. 

§  10.    Differences  Between  Federal  and  State  Court  Procedure. 

The  differences  between  federal  and  state  practice  and  procedure 
are  due  (1)  to  the  limited  nature  of  federal  jurisdiction  requiring 
(a)  some""  ground  of  federal  jurisdiction  to  be  involved  in  all  ac- 
tions in  the  federal  court,  and  (b)  that  in  certain  cases  the  amount 
in  controversy  must  exceed  three  thousand  dollars  exclusive  of 
interest  and  costs;  (2)  to  the  distinctions  maintained  in  federal 
courts  between  actions  at  law  and  suits  in  equity;  (3)  to  the  fed- 
eral statutes  relating  to  venue. 

It  will  be  seen  from  the  above  that  there  are  four  points 
for  consideration  in  determining  the  jurisdiction  and  consequent 
procedure  in  actions  brought  in  federal  courts. 

First,  whether  or  not  a  federal  ground  of  jurisdiction  is  in- 
volved, because  some  such  ground  must  appear  in  addition  to  the 
facts  necessary  generally  to  constitute  a  cause  of  action.  These 
grounds  of  federal  jurisdiction  are  treated  in  chapters  6  and  7, 
respectively,  entitled  "Federal  Questions,"  "Diverse  Citizenship." 

Second,  whether  or  not  there  is  the  requisite  amount  in  con- 
troversy. Congress,  having  power  in  its  discretion  to  establish 
inferior  courts,  necessarily  has  power  to  define  their  jurisdiction. 
In  defining  the  jurisdiction  of  the  district  court,  the  federal  stat- 
utes have  fixed  a  limitation  based  on  the  amount  in  controversy. 
This  subject  is  treated  in  chapter  8,  entitled  "Amount  in  Con 
troversy." 


9  THE  FEDERAL  JUDICIAL  SYSTEM.  Ch.  1,  §  11 

Third,  whether  or  not  the  suit  is  at  law  or  in  equity.  A  sepa- 
rate system  of  procedure  has  been  rendered  necessary  in  federal 
equity  suits,  because  a  number  of  states  have  adopted  a  blended 
form  of  procedure,  combining  legal  and  equitable  causes  of  action 
and  defenses,  while  the  federal  system  has  maintained  the  distinc- 
tions between  law  and  equity. 

Chapters  15  to  24,  inclusive,  give  the  main  proceedings  for  an 
action  at  law  in  the  federal  court  indicating  in  what  respects  the 
state  courts'  procedure  is  followed  and  in  what  particulars  the 
practice  is  not  in  conformity  with  that  of  the  state  courts;  and 
chapters  25  to  58,  inclusive,  give  the  procedure  for  a  suit  in  equity 
in  the  federal  court. 

Fourth,  certain  restrictions  have  been  adopted  in  the  federal 
courts  respecting  the  place  of  trial  of  actions,  or  venue.  These 
restrictions  are  not  jurisdictional  if  waived  by  the  parties,  but 
may  defeat  the  action  if  timely  objection  be  made.  On  removal, 
timely  objection  on  this  ground  may  cause  the  case  to  be  remanded 
This  subject  of  venue  is  treated  in  chapter  4,  entitled  "Territorial 
Jurisdiction — Venue. ' ' 

§  11.    Why  a  Special  Study  of  Federal  Procedure  Required. 

Federal  equity  procedure  is  now  wonderfully  simplified  under 
the  equity  rules  which  took  effect  February  1,  1913  (Appendix), 
and  the  Judicial  Code  which  took  effect  January  1,  1912  (Ap- 
pendix). 

There  will  be  but  little  difficulty  in  mastering  the  present  equity 
procedure  if  the  practitioner  will  bear  in  mind  the  points  men- 
tioned in  the  preceding  section  respecting  jurisdiction,  federal 
and  equitable,  amount  in  controversy  and  venue. 

But  special  study  of  the  subject  is  required  because  the  federal 
equity  procedure  is  a  complete,  separate  system  differing  in  many 
vital  particulars  from  state  systems. 

In  chapter  25,  entitled  "A  Suit  in  Equity — Summary,"  are  set 
out  the  main  points  in  the  conduct  of  a  suit  in  equity  and  the  time 
within  which  each  step  must  be  taken. 


§  12.,  Ch.  1  MANUAL  OF  FEDERAL  PROCEDURE.  10 

For  an  action  at  law  in  the  federal  court,  the  practitioner  must 
search  out  those  matters  wherein  the  federal  statutes,  federal  court 
rules  and  decisions  have  changed  the  mode  of  procedure  from  that 
in  the  state  court. 

In  chapter  15  post,  "An  Action  at  Law — Summary,"  it  is 
endeavored  to  indicate  the  main  points  in  conformity  and  those 
not  in  conformity  with  state  practice. 

In  chapters  59  to  67  are  set  out  statutes  relating  to  criminal 
procedure. 

Appellate  procedure  is  dealt  with  in  chapters  74  and  75. 

Procedure  in  removal  of  cases  from  a  state  to  the  federal  district 
court  is  treated  in  chapter  9. 

§12.    Desirability  of  Special  Study  of    Federal  Procedure. 

The  number  of  cases  coming  under  federal  jurisdiction,  particu- 
larly the  concurrent  jurisdiction  of  the  federal  district  court,  is 
greatly  increasing  with  the  consolidation  and  combination  of  busi- 
nesses and  with  the  growth  of  national  control  of  matters  formerly 
left  to  state  legislation. 

Time  devoted  to  the  study  of  federal  jurisdiction  and  procedure 
will  be  well  spent  in  view  of  the  strong  tendency  toward  national 
control  of  numerous  matters  affecting  the  different  business  inter- 
ests in  every  community. 

A  special  study  of  federal  procedure  is  required  if  the  lawyer 
desires  to  be  equipped  to  handle  business  of  importance.  The 
larger  the  interests  involved,  the  greater  liability  there  is  of  such 
matters  being  in  litigation  in  the  federal  rather  than  the  state 
court,  either  by  being  brought  there  originally  or  on  removal. 
The  necessity  is  undoubtedly  increasing  for  the  state  practitioner 
to  become  conversant  Vith  the  judicial  system,  jurisdiction  and 
procedure  not  only  of  his  own  state  (and  to  some  extent  of  other 
states),  but  also  of  the  nation. 


11  JUDICIAL  OFFICERS — DISTRICT  COURT.  Cll.  2,  §  20 


CHAPTER  2. 

JUDICIAL  OFFICERS— DISTRICT  COURT. 

SKO. 

20.  Judicial  Officers  Enumerated. 

21.  Judges — Division  of  Business  and  Assignment  of  Cases  for  Trial. 

22.  Designation  of  District  Judges  to  Hold  Court  in  Place  or  Aid  of  Another 

District  Judge. 

23.  Circuit  Judge,  When  to  Act  as  District  Judge. 

24.  Outside  District  Judges  for  Districts  in  the  Second  Circuit. 

25.  Substitutes  .in  Cases  of  Interest,  Relationship,  Bias  or  Prejudice. 

26.  Duties  and  Powers  of  Judges  Designated  in  Place  or  Aid  of  District 

Judges. 

27.  Other  Judicial  Officers — Disqualification  for  Appointment. 

28.  Clerks  and  Deputy  Clerks. 

29.  Marshals. 

30.  Deputy  Marshals. 

31.  Marshal's  Field  Deputies. 

32.  Criers  and  Bailiffs. 

33.  United  States  District  Attorneys. 

34.  Assistant  District  Attorneys. 

35.  Court  Commissioners. 

§20.  Judicial  Officers  Enumerated.  In  every  state  in  the 
United  States  there  is  at  least  one  federal  judicial  district.  These 
districts  are  described  with  their  terms  and  places  of  holding  court 
in  chapter  5,  Jud.  Code  (Appendix,  post}. 

§  1,  Jud.  Code  (Appendix,  post),  provides  for  at  least  one  judge 
in  every  district  except  certain  districts  in  Alabama,  Mississippi, 
and  Tennessee. 

Since  the  adoption  of  the  Judicial  Code  there  have  been  passed 
various  acts  for  additional  judges  for  several  districts.  These  acts 
will  appear  in  an  appendix  under  those  sections  of  chapter  5  of 
the  Judicial  Code  setting  out  the  districts  in  the  several  states. 
The  states  are  arranged  in  alphabetical  order. 

Other  judicial  district  officers  are:  a  clerk,  deputy  clerks,  a 
marshal,  deputy  marshals,  field  deputy  marshals,  bailiffs,  court 


§§  21-22,  Ch.  2        MANUAL  OP  FEDERAL,  PROCEDURE.  12 

crier,  district  attorney,  assistant  district  attorneys,  and  sometimes 
counsel  to  aid  the  district  attorney. 

There  are  also  court  commissioners  (§  35,  post),  receivers  (chap- 
ter 53,  post),  examiners,  masters  in  chancery  under  Equity  Rule 
68  (chapter  51,  post),  and  officers  appointed  under  the  bank- 
ruptcy laws  not  covered  by  this  work. 

§21.  Judges — Division  of  Business  and  Assignment  of  Cases 
for  Trial.  Where  there  is  more  than  one  judge  in  a  district  they 
have  authority,  under  §  23,  Jud.  Code  (Appendix,  post),  to  agree 
upon  a  division  of  business  and  assignment  of  cases  for  trial,  but 
in  case  they  do  not  so  agree,  the  senior  circuit  judge  shall  make 
the  necessary  orders. 

§22.  Designation  of  District  Judges  to  Hold  Court  in  Place 
or  in  Aid  of  Another  District  Judge.  When  any  district  judge  is 
prevented  by  any  disability  from  holding  court,  §  13,  Jud.  Code 
(Appendix,  post),  provides  for  the  appointment  of  another  district 
judge  from  the  same  circuit,  or  if  public  interest  so  requires,  a 
judge  from  any  district  in  another  circuit. 

So  likewise,  when  from  the  accumulation  or  urgency  of  business 
in  any  district  court  the  public  interests  require  the  aid  of  another 
judge,  §  14,  Jud.  Code  (Appendix,  post),  authorizes  the  appoint- 
ment of  one  from  another  district  in  the  same  circuit,  who  may  hold 
court  separately  at  the  same  time  as  the  other  judges. 

Ordinarily  the  appointment  is  made  by  any  circuit  judge  of  the 
circuit  in  which  the  district  lies,  and  in  their  absence  by  the  cir- 
cuit justice  of  the  circuit  in  which  the  district  lies.  But  in  case 
of  absence  or  inability  of  such  circuit  judge  and  circuit  justice, 
§  15,  Jud.  Code  (Appendix,  post),  designates  the  chief  justice  of  the 
United  States  to  make  the  appointment. 

Likewise  under  §  16,  Jud,  Code  (Appendix,  post),  a  new  designa- 
tion and  appointment  of  any  other  district  judge  is  authorized. 

When  the  senior  circuit  judge  is  present  in  the  circuit,  it  is  his 
duty,  under  §  17,  Jud.  Code  (Appendix,  post),  to  appoint  the  dis- 


13  JUDICIAL  OFFICERS — DISTRICT  COURT.       Ch.  2,  §§  23-27 

trict  judge  of  any  judicial  district  within  his  circuit  to  hold  court  in 
the  place  or  in  aid  of  any  other  district  judge  within  the  same 
circuit. 

§  23.  Circuit  Judge,  When  to  Act  as  District  Judge.  Under 
§  18,  Jud.  Code  (Appendix,  post),  a  circuit  judge  may  sometimes  be 
assigned  to  hold  district  court. 

§  24.  Outside  District  Judges  for  Districts  in  the  Second  Cir- 
cuit. By  the  amendment  of  October  3,  1913,  c.  18,  to  §  18,  Jud. 
Code  (Appendix,  post),  district  judges  from  other  circuits  for 
the  second  circuit  may  be  appointed  if  they  consent  in  writing 
and  the  senior  circuit  judge  of  the  circuit  within  which  the  desig- 
nated judge  resides  certifies  in  writing  that  the  business  of  the 
district  of  such  judge  shall  not  suffer  thereby. 

§25.  Substitutes  in  Cases  of  Interest,  Relationship,  Bias  or 
Prejudice.  Provisions  are  made  for  an  outside  judge  in  case  of 
interest  or  relationship  of  the  incumbent  by  §  20,  Jud.  Code  (Ap- 
pendix, post),  and  for  the  designation  of  another  judge  on  affidavit 
of  personal  bias  or  prejudice  of  the  trial  judge  by  §  21,  Jud.  Code 
(Appendix,  post). 

§  26.  Duties  and  Powers  of  Judges  Designated  in  Place  or  Aid 
of  District  Judges.  By  §  19,  Jud.  Code  (Appendix,  post),  the  out- 
side judge  is  given  all  the  duties  and  powers  of  a  district  judge 
of  the  district  for  which  he  is  appointed. 

§27.  Other  Judicial  Officers — Disqualification  for  Appoint- 
ment. Under  §  67,  Jud.  Code  (Appendix,  post),  no  person  shall  be 
appointed  to  or  employed  in  any  office  or  duty  in  any  court  who  is 
related  by  affinity  or  consanguinity  within  the  degree  of  first 
cousin  to  the  judge  of  such  court.  An  exception  is  made  in  the 
amendment  of  December  21,  1911,  c.  4,  allowing  persons  employed 


§  28,  Ch.  2  MANUAL  OF  FEDERAL  PROCEDURE.  14 

in  the  circuit  courts,  which  were  abolished,  to  be  employed  in  the 
district  court  succeeding  to  such  circuit  court's  jurisdiction. 

By  §  68,  Jud.  Code  (Appendix,  post),  no  clerk  or  his  deputy  may 
be  appointed  master  or  receiver  in  any  case,  except  for  special 
reasons  assigned  in  the  order  of  appointment. 

§  28.  Clerks  and  Deputy  Clerks.  A  clerk  of  the  district  court 
is  appointed  by  the  judge  thereof  under  §  3,  Jud.  Code  (Appendix, 
post),  except  as  otherwise  provided  by  law. 

The  deputy  clerks,  under  §  4,  Jud.  Code  (Appendix,  post),  are 
appointed  by  the  clerks  with  the  approval  of  the  district  judge. 

The  term  of  the  district  clerk  is  at  the  will  of  the  district 
judge  (Ex  parte  Herman,  13  Pet.  (U.  S.)  230,  10  L.  Ed.  138),  and 
of  the  deputy  clerks,  at  the  pleasure  of  the  clerk  appointing  them, 
with  the  concurrence  of  the  district  judge,  under  §  4,  Jud.  Code 
(Appendix,  post). 

The  oath  of  the  clerk  is  set  out  in  §  794,  Rev.  Stats.  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  637 ;  2  U.  S.  Comp.  Stats.  1916,  §  1321, 
p.  2182). 

A  bond  is  required  under  §  795,  Eev.  Stats.  (4  Fed.  Stats.  Ann., 
2d  ed.,  p.  637;  2  U.  S.  Comp.  Stats.  1916,  §  1322,  p.  2183),  and  see 
§  220,  Jud.  Code  (Appendix,  post),  and  §  3,  Act  Feb.  22,  1875,  c.  95, 
18  Stats.  333  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  640;  2  U.  S.  Comp. 
Stats.  1916,  §  1196,  p.  1557) 

Additional  bonds  may  be  required,  when  the  business  of  the  court 
makes  necessary,  under  the  provisions  of  §  2,  Act  Feb.  22,  1875, 
c.  95,  18  Stats.  333  (4  Fed.  Stats.  Ann.,  2  ed.,  p.  639 ;  2  U.  S.  Comp. 
Stats.  1916,  §1331,  p.  2188). 

If  any  clerk  shall  willfully  refuse  or  neglect  to  make  any  report, 
certificate,  statement  or  other  document  required  by  law  to  be  by 
him  made,  he  may  be  removed  by  the  President  ( §  5,  Act  Feb. 
22,  1875,  c.  95,  18  Stats.  333  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  773; 
2  U.  S.  Comp.  Stats.  1916,  §  1328,  p.  2187). 


15  JUDICIAL  OFFICERS — DISTRICT  COURT.  Ch.  2,  §  29 

For  failure  to  do  as  set  out  in  §  5,  same  act,  there  is  an  addi- 
tional punishment  provided,  §  6,  said  act,  making  the  neglect  or 
refusal  a  misdemeanor. 

The  bond  of  deputy  clerks  is  required  under  §  796,  Rev.  Stats. 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  640;  2  U.  S.  Comp.  Stats.  1916,  §  1324, 
p.  2185). 

The  oath  of  the  deputy  clerk  is  the  same  as  that  of  the  clerk 

§  29.    Marshals. 

§  776,  Rev.  Stats.  "A  marshal  shall  be  appointed  in  each  dis- 
trict, except  in  the  middle  district  of  Alabama,  and  the  north- 
ern district  of  Georgia,  and  the  western  district  of  South 
Carolina.  The  marshal  of  the  southern  district  of  Alabama 
shall  perform  the  duties  of  marshal  of  the  middle  district  of 
said  state,  and  shall  keep  an  office  at  Montgomery  in  said 
middle  district.  The  marshal  of  the  southern  district  of 
Georgia  shall  perform  the  duties  of  marshal  of  the  northern 
district  of  said  state.  The  marshal  of  the  eastern  district  of 
South  Carolina  shall  perform  the  duties  of  marshal  of  the 
western  district  of  said  state."  (4  Fed.  Stats.  Ann.,  2d  ed., 
p.  626;  2  U.  S.  Comp.  Stats.  1916,  §  1302,  p.  2162.) 

That  portion  of  the  above-quoted  section,  relating  to  certain  dis- 
tricts of  Alabama  and  Georgia,  has  been  superseded  by  special 
provisions  for  those  states.  These  provisions  with  a  number  of 
others  relating  to  officers  in  particular  districts  may  be  found  in 
4  Fed.  Stats.  Ann.,  2d  ed.,  pp.  777-799 ;  2  U.  S.  Comp.  Stats.  1916, 
§§1341-1374,  p.  2196  et  seq. 

The  term  of  the  marshal  is  four  years,  under  §  779,  Rev.  Stats. 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  627;  2  U.  S.  Comp.  Stats.  1916, 
§1303,  p.  2163). 

Vacancies  in  marshal's  office  may  be  filled  under  §  793,  Rev.  Stats. 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  621 ;  2  U.  S.  Comp.  Stats.  1916,  §  1318, 
p.  2181),  and  §  2,  Act  June  24,  1898,  c.  495  (4  Fed.  Stats.  Ann., 
2d  ed.,  p.  625;  2  U.  S.  Comp.  Stats.  1916,  §  1320,  p.  2182). 

The  oath  of  the  marshal  is  defined  by  §  782,  Rev.  Stats.  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  629;  2  U.  S.  Comp.  Stats.  1916,  §  J305, 
p.  2165). 


§  30,  Ch.  2  MANUAL  OP  FEDERAL  PROCEDURE.  16 

The  bond  of  the  marshal  is  required  by  §  783,  Rev.  Stats.  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  640;  2  U.  S.  Comp.  Stats,  1916,  §  1307, 
p.  2166). 

Suit  on  marshal's  bond  is  authorized  under  §  784,  Rev.  Stats. 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  642;  2  U.  S.  Comp.  Stats.  1916, 
§1308,  p.  2167). 

Bond  to  be  further  security  after  judgment  is  provided  in  §  785, 
Rev.  Stats.  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  645 ;  2  U.  S.  Comp.  Stats. 
1916,  §1309,  p.  2171). 

Limitation  of  suit  on  bond  is  defined  in  §  786,  Rev  Stats.  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  646;  2  U.  S.  Comp.  Stats.  1916,  §  1310, 
p.  2171). 

§30.    Deputy  Marshals. 

§  780,  Rev.  Stats.  ' '  ( Deputy  marshals. )  Every  marshal  may 
appoint  one  or  more  deputies,  who  shall  be  removable  from 
office  by  the  judge  of  the  district  court,  or  by  the  circuit  court 
for  the  district,  at  the  pleasure  of  either."  (4  Fed.  Stats. 
Ann.,  2d  ed.,  p.  627;  2  U.  S.  Comp.  Stats.  1916,  §  1304, 
p.  2164). 

Oath  of  deputy  marshal  set  out  in  §  782,  Rev.  Stats.  (4  Fed.  Stats. 
Ann.,  2d  ed.,  p.  629;  2  U.  S.  Comp.  Stats.  1916,  §  1305,  p.  2165). 

§  10,  Act  May  28,  1896,  c.  252.  (Marshal's  office  deputies 
and  clerks.)  "That  when  in  the  opinion  of  the  Attorney 
General  the  public  interest  requires  it,  he  may,  on  the 
recommendation  of  the  marshal,  which  recommendation  shall 
state  the  facts  as  distinguished  from  conclusions,  showing 
necessity  for  the  same,  allow  the  marshals  to  employ  neces- 
sary office  deputies  and  clerical  assistance,  upon  salaries  to 
be  fixed  by  the  Attorney  General,  from  time  to  time,  and 
paid  as  hereinafter  provided.  When  any  of  such  office  deputies 
is  engaged  in  the  service  of  any  writ,  process,  subpoena,  or 
other  order  of  the  court,  or  when  necessarily  absent  from  the 
place  of  his  regular  employment,  on  official  business,  he  shall 
be  allowed  his  actual  traveling  expenses  only,  and  his  necessary 
and  actual  expenses  for  lodging  and  subsistence,  not  to  ei- 


17  JUDICIAL  OFFICERS — DISTRICT  COURT.       Ch.  2,  §§  31-32 

ceed  three  dollars  per  clay,  and  the  necessary  actual  expenses 
in  transporting  prisoners,  including  necessary  guard  hire; 
and  he  shall  make  and  render  accounts  thereof  as  hereinafter 
provided."  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  740;  2  U.  S.  Comp. 
Stats.,  1916,  §  1425,  p.  2317.) 

§31.    Marshal's  Field  Deputies. 

§  11,  Act  May  28,  1896,  c.  252,  as  amended  ly  act  March  4, 
1911,  c.  269.  "That  at  any  time  when,  in  the  opinion  of  the 
marshal  of  any  district,  the  public  interest  will  thereby  be 
promoted,  he  may  appoint  one  or  more  deputy  marshals  for 
such  district,  who  shall  be  known  as  field  deputies,  and,  who, 
unless  sooner  removed  by  the  district  court  as  now  provided 
by  law,  shall  hold  office  during  the  pleasure  of  the  marshal, 
except  as  hereinafter  provided,  and  who  shall  each,  as  his  com- 
pensation, receive  the  gross  fees,  including  mileage,  as  pro- 
vided by  law,  earned  by  him,  not  to  exceed  one  thousand  five 
hundred  dollars  per  fiscal  year,  or  at  that  rate  for  any  part  of 
a  fiscal  year ;  and  in  addition  shall  be  allowed  his  actual  neces- 
sary expenses,  not  exceeding  two  dollars  a  day,  while  en- 
deavoring to  arrest,  under  process,  a  person  charged  with  or 
convicted  of  crime:  Provided,  That  a  field  deputy  may  elect 
to  receive  actual  expenses  on  any  trip  in  lieu  of  mileage: 
Provided  further,  That  in  special  cases,  where  in  his  judg- 
ment justice  requires,  the  Attorney  General  may  make  an  ad- 
ditional allowance,  not,  however,  in  any  case  to  make  the 
aggregate  annual  compensation  of  any  field  deputy  in  excess 
of  two  thousand  five  hundred  dollars  nor  more  than  the  gross 
fees  earned  by  such  field  deputy.  The  marshal,  immediately 
after  making  any  appointment  or  appointments  under  this 
section,  shall  report  the  same  to  the  Attorney  General,  stating 
the  facts  as  distinguished  from  conclusions  constituting  the 
reason  for  such  appointment,  and  the  Attorney  General  may 
at  any  time  cancel  any  such  appointment  as  the  public  inter- 
est may  require."  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  628;  2  U.  S. 
Comp.  Stats.  1916,  §  1423,  p.  2317.) 

§32.  Criers  and  Bailiffs.  The  court  appoints  a  crier  and  the 
marshal  may  appoint  not  to  exceed  five  bailifl's,  under  §  5,  Jud.  Code 
(Appendix,  post). 


§  33,  Ch.  2  MANUAL  OF  FEDERAL  PROCEDURE.  18 

§  33.    United  States  District  Attorneys. 

§  767,  Rev.  Stats.  "  (District  attorneys — for  all  the  districts.) 
There  shall  be  appointed  in  each  district,  [except  in  the  middle 
district  of  Alabama,  and  the  northern  district  of  Georgia,  and 
the  western  district  of  South  Carolina] ,  a  person  learned  in  the 
law,  to  act  as  attorney  for  the  United  States  in  such  dis- 
trict. [The  district  attorney  of  the  northern  district  of  Ala- 
bama shall  perform  the  duties  of  district  attorney  of  the 
middle  district  of  said  State;  and  the  district  attorney  of  the 
southern  district  of  Georgia  shall  perform  the  duties  of  dis- 
trict attorney  of  the  northern  district  of  said  State;  and  the 
district  attorney  of  the  eastern  district  of  South  Carolina 
shall  perform  the  duties  of  district  attorney  for  the  western 
district  of  said  State]."  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  619; 
2  U.  S.  Comp.  Stats.  1916,  §  1294,  p.  2154.) 

Those  portions  of  the  above-quoted  section  in  brackets  have  been 
superseded  by  special  provisions.  There  are  also  other  special  pro- 
visions relating  to  other  states.  Such  special  provisions  may  be 
found  in  4  Fed.  Stats.  Ann.,  2d  ed.,  pp.  777-799 ;  2  U.  S.  Comp. 
State.  1916,  §§  1341-1374,  p.  2196  et  seq. 

Their  term  is  four  years  and  they  are  required  to  be  sworn 
under  §  769,  Rev.  Stats.  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  624;  2  U.  S. 
Comp.  Stats.  1916,  §  1295,  p.  2156).. 

Special  counsel  may 'be  retained  to  aid  United  States  district  at- 
torneys under  §  363,  Rev.  Stats.  (4  Fed.  Stats.  Ann.,  2d  ed..  p.  620; 
1  U.  S.  Comp.  Stats.  1916,  §  538,  p.  282),  but  heads  of  departments 
must  call  on  department  of  justice  for  counsel  under  §  189,  Rev. 
Stats.  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  258;  1  U.  S.  Comp.  Stats. 
1916,  §271,  p.  116). 

Compensation  and  oath  of  such  special  counsel  are  provided  for 
in  §  366,  Rev.  Stats.  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  622;  1  U.  S. 
Comp.  Stats.  1916,  §  541,  p.  285). 

Vacancies  in  office  may  be  temporarily  filled  under  §  793,  Rev. 
Stats.  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  626 ;  2  U.  S.  Comp.  Stats.  1916, 
§  1318,  p.  2181). 


19  JUDICIAL  OFFICERS — DISTRICT  COURT.      Ch.  2,  §§  34-35 

§34.    Assistant  District  Attorneys. 

Part  §  8,  Act  May  28, 1896,  c.  252.  "That  whenever,  in  the 
opinion  of  the  district  judge  of  any  district  or  the  chief  justice 
of  any  territory  and  the  district  attorney,  evidenced  by 
writing,  the  public  interest  requires  it,  one  or  more  assistant 
district  attorneys  may  be  appointed,  by  the  Attorney  General ; 
but  such  opinion  shall  state  to  the  Attorney  General  the  facts 
as  distinguished  from  conclusions,  showing  the  necessity  there- 
for. Such  assistant  district  attorneys  shall  be  paid  such 
salary  as  the  Attorney  General  may  from  time  to  time  de- 
termine as  to  each,  which  shall  in  no  case  exceed  two  thousand 
five  hundred  dollars  per  annum :  Provided,  That  the  necessary 
expenses  for  lodging  and  subsistence  actually  paid,  not  exceed- 
ing four  dollars  per  day  and  actual  and  necessary  traveling 
expenses  of  the  district  attorney  and  his  assistants,  while 
absent  from  their  respective  official  residences  and  necessarily 
employed  in  going  to,  returning  from,  and  attending  before 
any  United  States  court,  commissioner,  or  other  committing 
magistrate,  and  while  otherwise  necessarily  absent  from  their 
respective  official  residences  on  official  business,  shall  be  al- 
lowed and  paid  in  the  manner  hereinafter  provided."  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  622 ;  2  U.  S.  Comp.  Stats.  1916,  §  1420, 
p.  2313.) 

The  provisions  of  the  above-quoted  section  do  not  apply  to 
Alaska,  Southern  District  of  New  York  nor  District  of  Columbia 
(§  24,  Act  May  28,  1896,  c.  252;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  721 ; 
!6  U.  S.  Comp.  Stats.  1916,  §  1431,  p.  2321). 

§35.     Court   Commissioners.     These   are   officers  with  magis-- 
terial  powers  in  both  civil  and  criminal  matters  coming  under  the 
jurisdiction  of  the  federal  laws. 

Part  §  19,  Act  May  28,  1896,  c.  252,  as  amended  Act  March 
2,  1901,  c.  814.  "It  shall  be  the  duty  of  the  district  court 
of  each  judicial  district  to  appoint  such  number  of  persons, 
to  be  known  as  United  States  commissioners,  at  such  places 
in  the  district  as  may  be  designated  by  the  district  court, 
which  United  States  commissioners  shall  have  the  same 
powers  and  perform  the  same  duties  as  are  now  imposed 
upon  commissioners  of  the  circuit  courts.  The  appointment 


§  35,  Cll.  2  MANUAL  OF   FEDERAL   PROCEDURE.  20 

of  such  United  States  commissioners  shall  be  entered  of 
record  in  the  district  courts,  ~and  notice  thereof  at  once 
given  by  the  clerk  to  the  Attorney  General.  That  such 
United  States  commissioners  shall  hold  their  offices,  respec- 
tively, for  the  term  of  four  years,  but  they  shall  be  at  any 
time  subject  to  removal  by  the  district  court;  and  no  person 
shall  at  any  time  be  a  clerk  or  deputy  clerk  of  a  United 
States  court  and  a  United  States  commissioner  without  the 
approval  of  the  Attorney  General:  Provided,  That  all  acts 
and  parts  of  acts  applicable  to  commissioners  of  the  circuit 
courts,  except  as  to  appointment  and  fees,  shall  be  appli- 
cable to  United  States  commissioners  appointed  under  this 
act.  Warrants  of  arrest  for  violations  of  internal  revenue 
laws  may  be  issued  by  United  States  commissioners  upon  the 
sworn  complaint  of  a  United  States  district  attorney,  assistant 
United  States  district  attorney,  collector  or  deputy  collector 
of  internal  revenue,  or  revenue  agent  or  private  citizen,  but 
no  such  warrant  of  arrest  shall  be  issued  upon  the  sworn  coin- 
plaint  of  a  private  citizen  unless  first  approved  in  writing 
by  a  United  States  district  attorney.  That  United  States  com- 
missioners and  all  clerks  and  all  deputy  clerks  of  United  States 
courts  are  hereby  authorized  to  administer  oaths."  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  631 ;  2  U.  S.  Comp.  Stats.  1916,  §  1333, 
p.  2189.) 

Commissioners  may  be  appointed  by  the  district  judge  to  ad- 
minister oaths  to  appraisers  of  vessels  or  goods  and  merchandise 
seized  for  breaches  of  the  laws  of  the  United  States — §  61,  Jud. 
Code  (Appendix,  post}. 

The  duties  of  these  officers  are  prescribed  by  law,  and  they  are, 
in  general,  to  issue  warrants  for  offenses  against  the  United  States; 
to  cause  the  offenders  to  be  arrested  and  imprisoned,  or  bailed,  for 
trial,  and  to  order  the  removal  of  offenders  to  other  districts — 
§  1014,  Rev.  Stats.  (2  Fed.  Stats.  Ann.,  2  ed.,  p.  654;  3  U.  S.  Comp. 
Stats.  1916,  §  1674,  p.  3447)  ;  §  1015,  Rev.  Stats.  (1  Fed.  Stats.  Ann., 
2d  ed.,  p.  490;  3  U.  S.  Comp.  Stats.  1916,  §  1679,  p.  3485)  ;  §  1016, 
Rev.  Stats.  (1  Fed.  Stats.  Ann.,  2d  ed.,  pp.  490,  491;  3  U.  S.  Comp. 
Stats.  1916,  §1680,  p.  3486). 

To  hold  to  security  of  the  peace  and  for  good  behavior,  §  270, 
Jud.  Code  (Appendix,  post). 


21  JUDICIAL  OFFICERS DISTRICT  COURT.  Ch.  2,  §  35 

To  enrry  into  effect  the  award  or  arbitration,  or  dccree^of  any 
consul  of  any  foreign  nation ;  to  sit  as  judge  or  arbitrator  in  such 
differences  as  may  arise  between  the  captains  and  crews  of  any 
vessels  belonging  to  the  nations  whose  interests  are  committed  to 
his  charge;  and  to  enforce  obedience  by  imprisonment  until  such 
award,  arbitration  or  decree  is  complied  with — §  271,  Jud.  Code 
(Appendix,  post). 

To  take  bail  and  affidavits  in  civil  causes — §  945,  Rev.  Stats. 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  772;  3  U.  S.  Comp.  Stats.  1916, 
§1571,  p.  3131). 

To  discharge  poor  convicts  imprisoned  for  nonpayment  of  fines — 
§  1042,  Rev.  Stats.  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  328;  3  U.  S.  Comp. 
Stats.  1916,  §  1706,  p.  3569). 

To  administer  oaths  and  take  acknowledgments — §  1778,  Rev. 
Stats.  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  772;  4  U.  S.  Comp.  Stats.  1916, 
§3259,  p.  4455). 

To  institute  prosecutions  under  the  laws  relating  to  crimes 
against  the  elective  franchise,  and  civil  rights  of  citizens,  and  to 
appoint  persons  to  execute  warrants  thereunder — §§  1982-1985, 
Rev.  Stats.  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  133 ;  4  U.  S.  Comp.  Stats. 
1916,  §3935,  p.  4805). 

To  issue  search-warrants  authorizing  internal  revenue  officers 
to  search  premises,  where  a  fraud  upon  the  revenue  has  been  com- 
mitted—§  3462,  Rev.  Stats.  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  323;  6 
U.  S.  Comp.  Stats.  1916,  §  6364,  p.  7399). 

To  summon  masters  of  vessels  to  appear  before  him  and  show 
cause  why  process  should  not  issue  against  such  vessel — §  4546, 
Rev.  Stats.  (Fed.  Stats.  Ann.,  2d  ed.,  title  "Seamen");  7  U.  S. 
Comp.  Stats.  1916,  §  8335,  p.  8838). 

To  issue  warrants  for  and  examine  persons  charged  with  being 
fugitives  from  justice— §§  5270,  5271,  Rev.  Stats'.  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  265  and  p.  281;  10  U.  S.  Comp.  Stats.  1916, 
§§  10,110,  10,111,  p.  12,367  et  seq.). 

"While  their  duties  are  thus  prescribed  by  law,  and  while  they 
are,  to  a  certain  extent,  independent  in  their  statutory  and  judi- 
cial action,  there  is  no  law  providing  how  their  duties  shall  be 


§  35,  Ch.  2  MANUAL  OF  FEDERAL  PROCEDURE.  2'Z 

performed,  and  so  far  as  relates  to  their  administrative  action, 
we  think  they  were  intended  to  be  subject  to  the  orders  and  di- 
rections of  the  court  appointing  them.  As  was  said  by  this  convt 
in  Griffin  v.  Thompson,  43  U.  S.  (2  How.)  244,  257,  11  L.  Ed.  253, 
258,  'there  is  inherent  in  every  court  a  power  to  supervise  the 
conduct  of  its  officers,  and  the  execution  of  its  judgments  and 
process.  Without  this  power  courts  would  be  wholly  impotent 
and  useless.'  While  no  express  power  is  given  over  these  officers 
by  statute,  their  relations  to  the  court  are  such  that  some  power 
of  this  kind  must  be  implied.  Though  not  strictly  officers  of  the 
court,  they  have  always  been  considered  in  the  same  light  as  mas- 
ters in  chancery  and  registers  in  bankruptcy,  and  subject  to  its 
supervision  and  control.  What  shall  be  the  nature  of  the  require- 
ments in  each  particular  case  must  be  left  largely  to  the  discre- 
tion of  the  court.  Certainly  we  cannot  presume  that  the  court 
will  abuse  its  discretion,  or  will  act  otherwise  than  is  deemed  con- 
ducive to  the  public  good."  (U.  S.  v.  Allred,  155  U.  S.  591, 
39  L.  Ed.  273,  15  Sup.  Ct.  231.) 


23  JUDICIAL  DISTRICTS,  ETC.  Ch.  3,  §§  50-51 


CHAPTER  3. 

JUDICIAL    DISTEICTS,    TERMS,    RECORDS,    REPORTS    AND    RULES 

OF  PRACTICE. 

SEC. 

50.  Judicial  Districts,  Terms  and  Places  of  Holding  Court. 

51.  Special  Terms,  Adjournments  and  Continuances. 

52.  When  Courts  are  Open. 

53.  Orders  of  Judge  at  Chambers  and  in  Vacation. 

54.  District  Court  Records. 

55.  Reports  of  Decisions. 

56.  Admission  to  Practice  Before. 

57.  Rules  of  Practice — Law  Actions. 

58.  Rules  of  Practice — Equity  Suits. 

§  50.  Judicial  Districts,  Terms  and  Places  of  Holding-  Court. 
Chapter  5,  Jud.  Cod$  (Appendix,  post),  sets  out  in  alphabetical 
order  the  states,  with  the  judicial  districts  and  divisions  into 
which  they  are  divided,  the  counties  included  in  each  district  and 
division,  the  time  of  holding  the  regular  terms  of  court  and  the 
places  where  the  courts  sit. 

A  judicial  district  includes  the  territory  embraced  in  certain 
counties  of  some  state  at  a  given  date.  Each  state  contains  one 
or  more  judicial  districts.  The  territorial  limits  of  a  district 
never  include  territory  of  more  than  one  state. 

Many  districts  are  subdivided  into  divisions  for  convenience 
in  holding  court. 

§  51.  Special  Terms,  Adjournments  and  Continuances.  Judi- 
cial officers  for  district  courts  have  been  treated  in  chapter  2 
above. 

Special  terms  may  be  ordered  by  the  district  judge  when  busi- 
ness requires,  under  §  11,  Jud.  Code  (Appendix,  post). 

If  the  judge  is  absent,  the  marshal  or  clerk  may  adjourn  court 
by  order  under  §  12,  Jud.  Code  (Appendix,  post). 


§§  52-54,  Ch.  3      MANUAL  OF  FEDERAL  PROCEDURE.  24 

So,  also,  if  the  office  of  judge  becomes  vacant,  the  clerk  may 
continue  pending  proceedings,  under  §  22,  Jud.  Code  (Appendix, 
post). 

Trials  commenced  may  be  completed  in  a  new  term.  They  are 
not  stayed  or  discontinued  by  the  arrival  of  a  new  term,  under  §  8, 
Jud.  Code  (Appendix,  post). 

Monthly  adjournments  of  terms  may  be  made  to  expedite  crim- 
inal cases,  under  §  10,  Jud.  Code  (Appendix,  post). 

The  altering  of  terms  does  not  affect  the  validity  of  proceedings 
already  taken,  and  matters  pending  are  triable  in  the  next  term 
following,  under  §  7,  Jud.  Code  (Appendix,  post). 

§  52.  When  Courts  are  Open.  The  district  courts,  as  courts 
of  admiralty  and  as  courts  of  equity,  are  always  open  for  the  pur- 
pose of  filing  any  pleading,  of  issuing  and  returning  mesne  and 
final  process,  and  of  making  and  directing  all  interlocutory  motions, 
orders,  rules  and  other  proceedings  preparatory  to  the  hearing, 
upon  their  merits,  of  all  causes  pending  therein.  This  is  a  pro- 
vision of  §  9,  Jud.  Code  (Appendix,  post),  and  Equity  Kule  1. 

§  53.  Orders  of  Judge  at  Chambers  and  in  Vacation.  Any 
district  judge  may,  upon  reasonable  notice  to  the  parties,  make, 
direct  and  award,  at  chambers  or  in  the  clerk's  office,  and  in  vaca- 
tion as  well  as  in  term,  all  such  process,  commissions,  orders,  rules 
and  other  proceedings,  whenever  the  same  are  not  grantable  of 
course,  according  to  the  rules  and  practice  of  the  court.  This  is 
the  provision  of  latter  part  §  9,  Jud.  Code  (Appendix,  post),  and 
also  Equity  Rule  1. 

§  54.  District  Court  Records.  Records  of  the  district  court 
are  kept  where  the  court  is  held,  and,  if  more  than  one  of  such 
places,  where  the  district  judge  designates  under  §  6,  Jud.  Code 
(Appendix,  post).  On  a  territory  becoming  a  state,  provisions  for* 
transferring  territorial  records  to  the  federal  district  court  appear 
in  §§  62  and  63,  Jud.  Code  (Appendix,  post). 


25  JUDICIAL  DISTRICTS,  ETC.  Ch.  3,  §§  55-58 

§  55.  Reports  of  Decisions.  The  decisions  of  the  district 
courts  are  to  be  found  in  the  Federal  Reporter,  containing,  in  1917, 
about  244  volumes.  This  set  also  contains  the  United  States  cir- 
cuit court  decisions  up  to  the  time  said  court  was  abolished,  Janu- 
ary 1,  1912.  It  also  contains  the  decisions  of  the  circuit  court  of 
appeals,  established  in  1891,  and  the'  commerce  court,  established 
in  1911,  and  since  abolished.  (As  to  the  commerce  court,  see  chap- 
ter 9,  Jud.  Code,  in  our  Appendix.)  Decisions  prior  to  1880  are 
contained  in  the  Federal  Cases. 

§  56.  Admission  to  Practice  Before.  The  rules  for  admission 
to  practice  before  the  district  courts  of  the  United  States  are  con- 
tained in  the  court  rules  adopted  by  the  several  district  courts, 
and  vary  in  the  different  districts.  Generally,  attorneys  who  have 
been  admitted  to  practice  in  the  state  courts  are  eligible  to  be 
admitted  on  motion. 

§  57.  Rules  of  Practice — Law  Actions.  This  subject  is  treated 
post,  chapters  15  to  24,  inclusive.  The  rules  governing  law  actions 
generally  conform  to  those  of  state  courts  of  record  as  modified  by 
federal  statutes  and  rules  of  practice  of  the  district  courts  in  the 
several  districts.  Among  the  conformity  statutes  are  §§  914,  915, 
916,  918,  990,  991,  993,  966,  967,  858,  Rev.  Stats,  of  the  United 
States,  and  Act  June  1,  1874,  c.  200.  There  are  numerous  special 
federal  statutes  dealing  with  various  subjects  relating  to  proce- 
dure. Among  some  of  such  subjects  are  venue,  amendments,  evi- 
dence, depositions,  witnesses,  costs  and  fees  and  bills  of  excep- 
tions. Sec  chapter  15,  post,  summarizing  these  statutes. 

§  58.  Rules  of  Practice  —  Equity  Suits.  Equity  suits  are 
governed  by  the  United  States  statutes,  supreme  court  rules  and 
additional  district  court  rules.  Under  §  917,  Rev.  Stats.,  the  su- 
preme court  is  given  power  to  prescribe  rules  in  equity  and  admir- 
alty suits,  and  under  §§  918  and  913,  Rev.  Stats.,  and  Equity  Rule 
79,  the  district  courts  may  prescribe  additional  rules  for  their 
own  practice.  The  equity  suit  is  treated  post,  chapters  25  to  55, 
inclusive. 


§  60,  Ch.  4  MANUAL  OF  FEDERAL  PROCEDURE.  26 


CHAPTER  4. 

TERRITORIAL   JURISDICTION— VENUE. 

SEC. 

60.  In  General. 

61.  Civil  Suits — In  General. 

62.  Nonlocal  Suits  in  State  of  More  than  One  District. 

63.  Nonlocal   Suits    Where    District   Contains    More    than   One   Division — 

Criminal  Cases — Transfer. 

64.  Local  Suits  With  Defendant  in  Another  District  Same  State. 

65.  Local  Suits  With  Subject  Matter  Lying  Partly  in  One  District  and 

Partly  in  Another. 

66.  Liens — Clouds  on  Title — Absent  Defendant. 

67.  Receiver's  Jurisdiction  Over  Real  Property  in  Other  Districts  in  Circuit. 

68.  Transfer  to  Another  Division  on  Stipulation. 

69.  On  Creation  of  New  District  or  Division  or  Transfer  of  Territory. 

70.  Same — Preservation  and  Enforcement  of  Liens. 

71.  Infringement  of  Letters  Patent. 

72.  Under   Copyright  Laws. 

73.  To  Enjoin  Comptroller  of  Currency. 

74.  Part  of  Several  Defendants  not  Found. 

75.  Crimes  and  Offenses. 

76.  Penalties  and  Forfeitures. 

77.  Taxes  and  Internal  Revenue. 

78.  Condemnation  Insurrectionary  Property. 

79.  Seizures  for  Forfeiture — Embargo  or  Insurrection. 

80.  Prosecutions  for  Failure  to  File  Tariffs,  Giving  Rebates,  etc. 

81.  Prosecutions  for  Violations  of  the  Sixteen  Hour  Law. 
82..  Suits  Affecting  Orders  of  Interstate  Commerce  Commission. 

83.  Prosecutions  for  Injuries  to  Fortifications. 

84.  Prosecutions  of  Offenses  Against  the  Postal  Laws  in  Selling  Intoxicat- 

ing Liquors. 

85.  Prosecutions  for  Violations  of  Immigration  Laws. 

86.  Issue  of  Venue — How  Raised. 

§  60.  In  General.  In  considering  the  subject  of  venue,  the 
federal  district  or  division  corresponds  to  the  county  in  state 
systems. 

The  distinctions  exist  in  the  federal  as  in  the  state  practice  re- 
specting suits  of  local  and  suits  transitory  in  their  nature.  Suits 
of  a  local  nature  must  be  brought  in  the  district  in  which  lies  some 


27  TERRITORIAL  JURISDICTION — VENUE.  Ch.  4,  §  60 

part  of  the  land  or  other  property  of  a  fixed  character,  the  subject 
of  the  suit. 

Suits  not  of  a  local  nature  should  be  brought  in  the  district 
whereof  the  defendant  is  an  inhabitant,  except  where  the  jurisdic- 
tion is  founded  only  on  the  fact  that  the  action  is  between  citizens 
of  different  states,  in  which  case  the«suit  shall  be  brought  only  in 
the  district  of  residence  of  either  the  plaintiff  or  the  defendant. 
These  are  the  provisions  of  §  51,  Jud.  Code,  quoted  §  61,  post. 

Where  there  is  more  than  one  district  in  a  state  and  several  de- 
fendants in  a  suit  not  of  a  local  nature,  it  may  be  brought  where 
any  of  the  defendants  reside  and  process  issued  to  the  other  de- 
fendants residing  in  other  districts  in  the  state.  (§  52,  Jud.  Code, 
quoted  §  62,  post.) 

In  like  manner,  where  there  is  more  than  one  division  in  a  dis- 
trict and  several  defendants  in  a  suit  not  of  local  nature,  the  suit 
may  be  brought  in  the  division  of  the  residence  of  any  of  the  de- 
fendants and  process  issued  to  the  other  defendants  in  other  divi- 
sions and  districts  in  the  state.  (§  53,  Jud.  Code,  quoted  §  63, 
post.) 

Suits  of  local  nature  should  be  brought  where  the  land  lies,  and 
if  a  defendant  resides  in  a  different  district  in  the  same  state,  origi- 
nal process  may  be  served  on  him  therein.  ( §  54,  Jud.  Code,  quoted 
§  64,  post.) 

If  the  suit  is  of  local  nature  and  the  subject  matter  lies  partly  in 
one  district  and  partly  in  another  within  the  same  state,  suit  may 
be  brought  in  either  district.  (§  55,  Jud.  Code,  quoted  §  65,  post.) 

In  suits  to  enforce  any  legal  or  equitable  lien  upon,  or  claim  to, 
or  to  remove  any  encumbrance  or  lien  or  cloud  upon  the  title  to, 
real  or  personal  property  within  the  district  where  the  suit  is 
brought,  service  may  be  made  on  nonresident  or  absent  defendants 
by  publication.  (§  57,  Jud.  Code,  quoted  §  66,  post.) 

In  a  suit  in  which  a  receiver  is  appointed,  where  the  land  or 
other  property  of  a  fixed  character,  the  subject  of  the  suit,  lies 
within  different  states  in  the  same  circuit,  the  receiver  upon  proper 


§§  61-62,  Ch.  4        MANUAL  OF  FEDERAL  PROCEDURE.  28 

proceedings  may  control  same,  although  outside  the  district  of  his 
appointment.     (§  56,  Jud.  Code,  quoted  §  67,  post.) 

There  are  special  provisions  relating  to  crimes  and  offenses  (§  75, 
post)  ;  penalties  and  forfeitures  (§  76,  post)  ;  taxes  and  internal 
revenue  (§  77,  post) ;  seizures  (§  79,  post);  patent  cases  (§  71, 
post);  under  the  copyright  .laws  (§81,  post);  suits  against  the 
comptroller  of  currency  (§73,  post);  prosecutions  for  injuries  to 
fortifications  (§  83,  post)  ;  prosecutions  for  violations  of  the  postal 
laws  regarding  use  of  the  mails  advertising,  etc.,  in  prohibition 
states,  intoxicating  liquors  (§  84,  post)  ;  prosecutions  for  violations 
of  the  sixteen  hour  law  (§  81,  post)  ;  interstate  commerce  act  (§  82, 
post)  ;  failure  to  file  tariffs,  etc..  (§  80,  post)  ;  and  prosecutions  for 
violation  of  the  immigration  laws  (§  85,  post). 

§  61.    Civil  Suits — In  General. 

§5i,  Jud.  Code  (Embracing  §  739,  Rev.  Stats.).  "Except 
as  provided  in  the  five  succeeding  sections,  no  person  shall  be 
arrested  in  one  district  for  trial  in  another,  in  any  civil  action 
before  a  district  court;  and,  except  as  provided  in  the  six 
succeeding  sections,  no  civil  suit  shall  be  brought  in  any  dis- 
trict court  against  any  person  by  any  original  process  or  pro 
ceeding  in  any  other  district  than  that  whereof  he  is  an  in- 
habitant; but  where  the  jurisdiction  is  founded  only  on  the 
fact  that  the  action  is  between  citizens  of  different  states,  suit 
shall  be  brought  only  in  the  district  of  the  residence  of  either 
the  plaintiff  or  the  defendant."  (5  Fed.  Stats.  Ann.,  2d  ed., 
p.  486;  1  U.  S.  Comp.  Stats.  1916,  §  1033,  pp.  1116-1159;  Sim- 
kins'  Federal  Equity  Suit,  3d  ed.,  pp.  48,  53,  92,  94,  96,  100, 
110,  314,  316,  333,  and  833.) 

This  section  is  substantially  what  was  already  the  law. 

§  62.    Nonlocal  Suits  in  State  of  More  Than  One  District. 

§55,  Jud.  Code  (Re-enacting  §  740,  Rev.  Stats.).  "When 
a  state  contains  more  than  one  district,  every  suit  not  of  a  local 
nature,  in  the  district  court  thereof,  against  a  single  defend- 
ant, inhabitant  of  such  state,  must  be  brought  in  the  district 
where  he  resides;  but  if  there  are  two  or  more  defendants, 
residing  in  different  districts  of  the  state,  it  may  be  brought. 


29  TERRITORIAL  JURISDICTION — VENUE.  Ch.  4,  §  63 

in  either  district,  and  a  duplicate  writ  may  be  issued  against 
the  defendants,  directed  to  the  marshal  of  any  other  district 
in  which  any  defendant  resides.  The  clerk  issuing  the  dupli- 
cate writ  shall  indorse  thereon  that  it  is  a  true  copy  of  a  writ 
sued  out  of  the  court  of  the  proper  district ;  and  such  original 
and  duplicate  writs,  when  executed  and  returned  into  the  office 
from  which  they  issue,  shall  constitute  and  be  proceeded  on 
as  one  suit ;  and  upon  any  judgment  or  decree  rendered  therein, 
execution  may  be  issued,  directed  to  the  marshal  of  any  dis- 
trict in  the  same  state."  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  518; 
1  U.  S.  Oomp.  Stats.  1916,  §  1034,  p.  1159;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  pp.  48,  98,  105,  107,  108,  313,  316 ;  Foster's 
Federal  Practice,  5th  ed.,  pp.  182,  577.) 

§  63.    Nonlocal  Suits  Where  District  Contains  More  Than  One 
Division — Criminal  Cases — Transfer. 

§  53,  Jud.  Code.  "When  a  district  contains  more  than  one 
division,  every  suit  not  of  a  local  nature  against  a  single  de- 
fendant must  be  brought  in  the  division  where  he  resides; 
but  if  there  are  two  or  more  defendants  residing  in  different 
divisions  of  the  district  it  may  be  brought  in  either  division. 
All  mesne  and  final  process  subject  to  the  provisions  of  this 
section  may  be  served  and  executed  in  any  or  all  of  the  divi- 
sions of  the  district,  or  if  the  state  contains  more  than  one 
'district,  then  in  any  of  such  districts,  as  provided  in  the  pre- 
ceding section.  All  prosecutions  for  crimes  or  offenses  shall 
be  had  within  the  division  of  such  districts  where  the  same 
were  committed,  unless  the  court,  or  the  judge  thereof,  upon 
the  application  of  the  defendant,  shall  order  the  cause  to 
be  transferred  for  prosecution  to  another  division  of  the  dis- 
trict. When  a  transfer  is  ordered  by  the  court  or  judge,  all 
the  papers  in  the  case,  or  certified  copies  thereof,  shall  be 
transmitted  by  the  clerk,  under  the  seal  of  the  court,  to  the 
division  to  which  the  cause  is  so  ordered  transferred ;  and 
thereupon  the  cause  shall  be  proceeded  with  in  said  division 
in  the  same  manner  as  if  the  offense  had  been  committed 
therein.  In  all  cases  of  the  removal  of  suits  from  the  courts 
of  a  state  to  the  district  court  of  the  United  jStates  such  re- 
moval shall  be  to  the  United  States  district  court  in  the  divi- 
sion in  which  the  county  is  situated  from  which  the  removal 


§§  64-66,  Ch.  4        MANUAL  OF  FEDERAL  PROCEDURE.  30 

is  made ;  and  the  time  within  which  the  removal  shall  be  per- 
fected, in  so  far  as  it  refers  to  or  is  regulated  by  the  terms 
of  United  States  courts,  shall  be  deemed  to  refer  to  the  terms 
of  the  United  States  district  court  in  such  division."  (5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  520;  1  U.  S.  Comp.  Stats.  1916,  §  1035, 
p.  1161;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  48,  108, 
134,  333,  313,  316;  Foster's  Federal  Practice,  5th  ed.,  p.  577.) 

§  64.    Local  Suits  With  Defendant  in  Another  District  Same 
State. 

§  54,  Jud.  Code  (Re-enacting  §  741,  Rev.  Stats.).  "In  suits 
of  a  local  nature,  where  the  defendant  resides  in  a  different 
district,  in  the  same  state,  from  that  in  which  the  suit  is 
brought,  the  plaintiff  may  have  original  and  final  process 
against  him,  directed  to  the  marshal  of  the  district  in  which 
he  resides. "  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  523 ;  1  U.  S.  Comp. 
Stats.  1916,  §1036,  p.  1163;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  pp.  49,  100,  313,  316;  Foster's  Federal  Practice,  5th 
ed.,  pp.  208,  577.) 

§  65.     Local  Suits  With  Subject  Matter  Lying1  Partly  in  One 
District  and  Partly  in  Another. 

§55,  Jud.  Code  (Re-enacting  §  742,  Rev.  Stats.).  "Any 
suit  of  a  local  nature,  at  law  or  in  equity,  where  the  land  or 
other  subject-matter  of  a  fixed  character  lies  partly  in  one 
district  and  partly  in  another,  within  the  same  state,  may  be 
brought  in  the  district  court  of  either  district;  and  the  court 
in  which  it  is  brought  shall  have  jurisdiction  to  hear  and 
decide  it,  and  to  cause  mesne  or  final  process  to  be  issued  and 
executed,  as  fully  as  if  the  said  subject-matter  were  wholly 
within  the  district  for  which  such  court  is  constituted."  (5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  523;  1  U.  S.  Comp.  Stats.  1916, 
§  1037,  p.  1164;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  100, 
313,  316;  Foster's  Federal  Practice,  5th  ed.,  pp.  182,  210, 
577.) 

§  66.    Liens — Clouds  on  Title — Absent  Defendant. 

§  57,  Jud.  Code  (Old  §§  738,  742,  Rev.  Stats.).  "When  in 
any  suit  commenced  in  any  district  court  of  the  United  States 


31  TERRITORIAL  JURISDICTION — VENUE.  Ch.  4,  §  66 

to  enforce  any  legal  or  equitable  lien  upon  or  claim  to,  or  to 
remove  any  encumbrance  or  lien  or  cloud  upon  the  title  to 
real  or  personal  property  within  the  district  where  such  suit 
is  brought,  one  or  more  of  the  defendants  therein  shall  not  be 
an  inhabitant  of  or  found  within  the  said  district,  or  shall  not 
voluntarily  appear  thereto,  it  shall  be  lawful  for  the  court  to 
make  an  order  directing  such  absent  defendant  or  defendants 
to  appear,  plead,  answer,  or  demur  by  a  day  certain  to  be 
designated,  which  order  shall  be  served  on  such  absent  de- 
fendant or  defendants,  if  practicable,  whenever  found,  and 
also  upon  the  person  or  persons  in  possession  or  charge  of 
said  property,  if  any  there  be;  or  where  such  personal  service 
upon  such  absent  defendant  or  defendants  is  not  practicable, 
such  order  shall  be  published  in  such  manner  as  the  court 
may  direct,  not  less  than  once  a  week  for  six  consecutive 
weeks.  In  case  such  absent  defendant  shall  not  appear,  plead, 
answer,  or  demur  within  the  time  so  limited,  or  within  some 
further  time,  to  be  allowed  by  the  court,  in  its  discretion,  and 
upon  proof  of  the  service  or  publication  of  said  order  and 
of  the  performance  of  the  directions  contained  in  the  same,  it 
shall  be  lawful  for  the  court  to  entertain  jurisdiction,  and 
proceed  to  the  hearing  and  adjudication  of  such  suit  in  the 
same  manner  as  if  such  absent  defendant  had  been  served  with 
process  within  the  said  district;  but  said  adjudication  shall, 
as  regards  said  absent  defendant  or  defendants  without  appear- 
ance, affect  only  the  property  which  shall  have  been  the  sub- 
ject of  the  suit  and  under  the  jurisdiction  of  the  court  therein, 
within  such  district;  and  when  a  part  of  the  said  real  or  per- 
sonal property  against  which  such  proceedings  shall  be  taken 
shall  be  within  another  district,  but  within  the  same  state, 
such  suit  may  be  brought  in  either  district  in  said  state: 
Provided,  however,  That  any  defendant  or  defendants  not 
actually  personally  notified  as  above  provided  may,  at  any 
time  within  one  year  after  final  judgment  in  any  suit  men- 
tioned in  this  section,  enter  his  appearance  in  said  suit  in  said 
district  court,  and  thereupon  the  said  court  shall  make  an 
order  setting  aside  the  judgment  therein  and  permitting  said 
defendant  or  defendants  to  plead  therein  on  payment  by  him 
or  them  of  such  costs  as  the  court  shall  deem  just;  and  there- 
upon said  suit  shall  be  proceeded  with  to  final  judgment 
according  to  law."  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  525;  I 


§§  67-68,  Ch.  4      MANUAL  OF  FEDERAL  PROCEDURE.  32 

U.  S.  Comp.  Stats.  1916,  §  1039,  p.  1165;  Simians'  Federal 
Equity  Suit,  3d  ed.,  pp.  48,  49,  102,  103,  237,  336,  337;  Fos- 
ter's Federal  Practice,  5th  ed.,  pp.  185,  599.) 

§  67.    Receiver's  Jurisdiction  Over   Real  Property  in   Other 
Districts  in  Circuit. 

§55,  Jud.  Code  (New}.  "Where  in  any  suit  in  which  a 
receiver  shall  be  appointed  the  land  or  other  property  of  a 
fixed  character,  the  subject  of  the  suit,  lies  within  different 
states  in  the  same  judicial  circuit,  the  receiver  so  appointed 
shall,  upon  giving  bond  as  required  by  the  court,  immediately 
be  vested  with  full  jurisdiction  and  control  over  all  the  prop- . 
erty,  the  subject  of  the  suit,  lying  or  being  within  such  cir- 
cuit ;  subject,  however,  to  the  disapproval  of  such  order,  within 
thirty  days  thereafter,  by  the  circuit  court  of  appeals  for 
such  circuit,  or  by  a,  circuit  judge  thereof,  after  reasonable 
notice  to  adverse  parties  and  an  opportunity  to  be  heard  upon 
the  motion  for  such  disapproval ;  and  subject,  also,  to  the  filing 
and  entering  in  the  district  court  for  each  district  of  the  cir- 
cuit in  which  any  portion  of  the  property  may  lie  or  be,  within 
ten  days  thereafter,  of  a  duly  certified  copy  of  the  bill  and 
of  the  order  of  appointment.  The  disapproval  of  such  ap- 
pointment within  such  thirty  days,  or  the  failure  to  file  such 
certified  copy  of  the  bill  and  order  of  appointment  within 
ten  days,  as  herein  required,  shall  devest  such  receiver  of 
jurisdiction  over  all  such  property  except  that  portion  thereof 
lying  or  being  within  the  state  in  Avhich  the  suit  is  brought. 
In  any  case  coming  within  the  provisions  of  this  section,  in 
which  a  receiver  shall  be  appointed,  process  may  issue  and  be 
executed  within  any  district  of  the  circuit  in  the  same  manner 
and  to  the  same  extent  as  if  the  property  were  wholly  within 
the  same  district;  but  orders  affecting  such  property  shall  be 
entered  of  record  in  each  district  in  which  the  property 
affected  may  lie  or  be."  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  524; 
1  U.  S.  Comp.  Stats.  1916,  §  1038,  p.  1164;  Foster's  Federal 
Practice,  5th  ed.,  pp.  211,  577,  953,  957.) 

§  68.    Transfer  to  Another  Division  on  Stipulation. 

§55,  Jud.  Code  (Drawn  from  24  Stats.  425;  34  Stats.  206). 
"Any  civil  cause,  at  law  or  in  equity,  may,  on  written  stipu- 


33  TERRITORIAL  JURISDICTION — VENUE.  Ch.  4,  §  69 

lation  of  the  parties  or  of  their  attorneys  of  record  signed 
and  filed  .with  the  papers  in  the  case,  in  vacation  or  in  term, 
and  on  the  written  order  of  the  judge  signed  and  filed  in  the 
case  in  vacation  or  on  the  order  of  the  court  duly  entered  of 
record  in  term,  be  transferred  to  the  court  of  any  other 
division  of  the  same  district,  without  regard  to  the  residence 
of  the  defendants,  for  trial.  When  a  cause  shall  be  ordered 
to  be  transferred  to  a  court  in  any  other  division,  it  shall  be 
the  duty  of  the  clerk  of  the  court  from  which  the  transfer  is 
made  to  carefully  transmit  to  the  clerk  of  the  court  to  which 
the  transfer  is  made  the  entire  file  of  papers  in  the  cause  and 
all  documents  and  deposits  in  his  court  pertaining  thereto, 
together  with  a  certified  transcript  of  the  records  of  all  orders, 
interlocutory  decrees,  or  other . entries  in  the  cause;  and  he 
shall  certify,  under  the  seal  of  the  court,  that  the  papers  sent 
are  all  which  are  on  file  in  said  court  belonging  to  the  cause ; 
for  the  performance  of  which  duties  said  clerk  so  transmitting 
and  certifying  shall  receive  the  same  fees  as  are  now  allowed 
by  law  for  similar  services,  to  be  taxed  in  the  bill  of  costs, 
and  regularly  collected  with  the  other  costs  in  the  cause;  and 
such  transcript,  when  so  certified  and  received,  shall  hence- 
forth constitute  a  part  of  the  record  of  the  cause  in  the  court 
to  which  the  transfer  shall  be  made.  The  clerk  receiving  such 
transcript  and  original  papers  shall  file  the  same  and  the  case 
shall  then  proceed  to  final  disposition  as  other  cases  of  a  like 
nature."  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  537;  1  U.  S.  Comp. 
Stats.  1916,  §1040,  p.  1180;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  pp.  108,  134.) 

§  69.    On  Creation  of  New  District  or  Division  or  Transfer  of 
Territory. 

§  59,  Jud.  Code.  "Whenever  any  new  district  or  division 
has  been  or  shall  be  established,  or  any  county  or  territory  has 
been  or  shall  be  transferred  from  one  district  or  division  to  an- 
other district  or  division,  prosecutions  for  crimes  and  offenses 
committed  within  such  district,  division,  county,  or  territory 
prior  to  such  transfer,  shall  be  commenced  and  proceeded  with 
the  same  as  if  such  new  district  or  division  had  not  been  created, 
or  such  county  or  territory  had  not  been  transferred,  unless  the 
court,  upon  the  application  of  the  defendant,  shall  order  the 

Manual — 8 


§  70,  Ch.  4  MANUAL  OP  FEDERAL  PROCEDURE.  34 

cause  to  be  removed  to  the  new  district  or  division  for  trial. 
Civil  actions  pending  at  the  time  of  the  creation  of  any  such 
district  or  division,  or  the  transfer  of  any  such  county  or  ter- 
ritory, and  arising  within  the  district  or  division  so  created 
or  the  county  or  territory  so  transferred,  shall  be  tried  in  the 
district  or  division  as  it  existed  at  the  time  of  the  institution 
of  the  action,  or  in  the  district  or  division  so  created,  or  to 
which  the  county  or  territory  is  or  shall  be  so  transferred,  as 
may  be  agreed  upon  by  the  parties,  or  as  the  court  shall  direct. 
The  transfer  of  such  prosecutions  and  actions  shall  be  made 
in  the  manner  provided  in  the  section  last  preceding."  (5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  538;  1  U.  S.  Comp.  Stats.  1916, 
§  1041,  p.  1180.) 

§  70.    Same — Preservation  and  Enforcement  of  Liens. 

§  60,  Jud.  Code  (Embracing  24  Stats.  309,  and  31  Stats. 
881).  "The  creation  of  a  new  district  or  division,  or  the  trans- 
fer of  any  county  or  territory  from  one  district  or  division  to 
another  district  or  division,  shall  not  affect  or  devest  any  lien 
theretofore  acquired  in  the  circuit  or  district  court  by  virtue  of 
a  decree,  judgment,  execution,  attachment,  seizure,  or  otherwise, 
upon  property  situated  or  being  within  the  district  or  division 
so  created,  or  the  county  or  territory  so  transferred.  To  enforce 
any  such  lien,  the  clerk  of  the  court  in  which  the  same  is  ac- 
quired, upon  the  request  and  at  the  cost  of  the  party  desiring 
the  same,  shall  make  a  true  and  certified  copy  of  the  record 
. .  thereof,  which,  when  so  made  and  certified,  and  filed  in  the 
proper  court  of  the  district  or  division  in  which  such  property  is 
situated  or  shall  be,  after  such  transfer,  shall  constitute  the  rec- 
ord of  such  lien  in  such  court,  and  shall  be  evidence  in  all  courts 
and  places  equally  with  the  original  thereof ;  and  thereafter  like 
proceedings  shall  be  had  thereon,  and  with  the  same  effect, 
as  though  the  cause  or  proceeding  had  been  originally  insti- 
tuted in  such  court.  The  provisions  of  this  section  shall  apply 
not  only  in  all  cases  where  a  district  or  division  is  created,  or 
a  county  or  any  territory  is  transferred  by  this  or  any  future 
act,  but  also  in  all  cases  where  a  district  or  division  has  been 
created,  or  a  county  or  any  territory  has  been  transferred  by 
any  law  heretofore  enacted."  (5  Fed.  Stats.  Ann.,  2d  ed., 
p.  538;  1  U.  S.  Comp.  Stats.  1916,  §  1042,  p.  1181.) 


35  TERRITORIAL  JURISDICTION — VENUE.       Ch.  4,  §§  71-74 

§  71.    Infringement  of  Letters  Patent. 

§45,  Jud.  Code  (Re-enacting  29  Stats.  695).  "In  suits 
brought  for  the  infringement  of  letters  patent  the  district 
courts  of  the  United  States  shall  have  jurisdiction,  in  law  or 
in  equity,  in  the  district  of  which  the  defendant  is  an  inhab- 
itant, or  in  any  district  in  which  the  defendant,  whether  a 
person,  partnership,  or  corporation,  shall  have  committed  acts 
of  infringement  and  have  a  regular  and  established  place  of 
business.  If  such  suit  is  brought  in  a  district  of  which  the 
defendant  is  not  an  inhabitant,  but  in  which  such  defendant 
has  a  regular  and  established  place  of  business,  service  of 
process,  summons,  or  subpoena  upon  the  defendant  may  be 
made  by  service  upon  the  agent  or  agents  engaged  in  con- 
ducting such  business  in  the  district  in  which  suit  is  brought." 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  478;  1  U.  S.  Comp.  Stats.  1U16, 
§  1030,  p.  1105;  Foster's  Federal  Practice,  5th  ed.,  p.  184.) 

§  72.    Under  Copyright  Laws. 

§  35,  Act  March  4,  1909,  c.  320.  "That  civil  actions,  'suits, 
or  proceedings  arising  under  this  Act  may  be  instituted  in  the 
district  of  which  the  defendant  or  his  agent  is  an  inhabitant, 
or  in  which  he  may  be  found."  (2  Fed.  Stats.  Ann.,  2d  ed., 
p.  593 ;  9  U.  S.  Comp.  Stats.  1916,  §  9556,  p.  10,994.) 

§  73.    To  Enjoin  Comptroller  of  Currency. 

§  49,  Jud.  Code  (Re-enacting  §  736,  Rev.  Stats.}.  "All 
proceedings  by  any  national  banking  association  to  enjoin  the 
Comptroller  of  the  Currency,  under  the  provisions  of  any 
law  relating  to  national  banking  associations,  shall  be  had  in 
the  district  where  such  association  is  located."  (5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  482;  1  U.  S.  Comp.  Stats.  1916,  §  1031,  p.  1109; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  145;  Foster's  Fed- 
eral Practice,  5th  ed.,  p.  187.)  . 

§  74.    Part  of  Several  Defendants  not  Found. 

§  50,  Jud.  Code  (Re-enacting  §  757,  Rev.  Stats.).  "Whon 
there  are  several  defendants  in  any  suit  at  law  or  in  equity, 
and  one  or  more  of  them  are  neither  inhabitants  of  nor  found 
within  the  district  in  which  the  suit  is  brought,  and  do  not 


§  75,  Ch.  4  MANUAL  OF  FEDERAL  PROCEDURE.  36 

voluntarily  appear,  the  court  may  entertain  jurisdiction,  and 
proceed  to  the  trial  and  adjudication  of  the  suit  between  the 
parties  who  are  properly  before  it;  but  the  judgment  or  de- 
cree rendered  therein  shall  not  conclude  or  prejudice  other 
parties  not  regularly  served  with  process  nor  voluntarily  ap- 
pearing to  answer;  and  nonjoinder  of  parties  who  are  not 
inhabitants  of  nor  found  within  the  district,  as  aforesaid,  shall 
not  constitute  matter  of  abatement  or  objection  to  the  suit." 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  482;  1  U.  S.  Comp.  Stats. 
1916,  §1032,  p.  1109;  Simkins'  Federal  Equity  Suit,  3d  ed., 
p.  101.) 

§  75.    Crimes  and  Offenses. 

Capital  offenses. 

§  40,  Jud.  Code  (Re-enacting  §  729,  Eev.  Stats.}.  "The  trial 
of.  offenses  punishable  with  death  shall  be  had  in  the  county 
where  the  offense  was  committed,  where  that  can  be  done  with- 
out great  inconvenience.''  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  467; 
1  U.  S.  Comp.  Stats.  1916,  §  1022,  p.  1092;  Foster's  Federal 
Practice,  5th  ed.,  p.  1723.) 

Committed  on  high  seas  or  outside  state  jurisdiction. 

§  41,  Jud.  Code  (Re-enacting  §  730,  Rev.  Stats.}.  "The 
trial  of  all  offenses  committed  upon  the  high  seas,  or  elsewhere 
out  of  the  jurisdiction  of  any  particular  state  or  district,  shall 
be  in  the  district  where  the  offender  is  found,  or  into  which 
he  is  first  brought."  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  468; 
1  U.  S.  Comp.  Stats,  1916,  §  1023,  p.  1092;  Foster's  Federal 
Practice,  5th  ed.,  p.  1724.) 

Committed  in  two  districts. 

§  42,  Jud.  Code  (Re-enacting  §731,  Rev.  Stats.}.  "When 
any  offense  against  the  United  States  is  begun  in  one  judicial 
district  and  completed  in  another,  it  shall  be  deemed  to  have 
been  committed  in  either,  and  may  be  dealt  with,  inquired  of, 
tried,  determined,  and  punished  in  either  district,  in  the  same 
manner  as  if  it  had  been  actually  and  wholly  committed  there- 
in." (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  470;  1  U.  S.  Comp.  Stats. 
1916,  §  1024,  p.  1096;  Foster's  Federal  Practice,  5th  ed., 
p.  1723;  Hyde  &  Schneider  v.  United  States,  225  U.  S.  347, 
56  L.  Ed.  1114,  32  Sup.  Ct.  793.) 


37  TERRITORIAL  JURISDICTION — VENUE.  Ch.  4,  §  76 

Sale  of  arms  and  intoxicants  in  Pacific  Islands  deemed  on  high 
seas. 

§  309,  Grim.  Code  (Drawn  from  32  Stats.  33) .  "All  offenses 
against  the  provisions  of  the  section  last  preceding  (•§  308 
Crim.  Code),  committed  on  any  of  said  islands  or  on  the 
waters,  rocks,  or  keys  adjacent  thereto,  shall  be  deemed  com- 
mitted on  the  high  seas  on  board  a  merchant  ship  or  vessel 
belonging  to  the  United  States,  and  the  courts  of  the  United 
States  shall  have  jurisdiction  accordingly."  (Fed.  Stats. 
Ann.,  2d  ed.,  "Penal  Laws";  10  U.  S.  Comp.  Stats.  1916, 
§  10,482,  p.  12,928.) 

Vessel  defined. 

§  310,  Crim.  Code  (New").  "The  words,  'vessel  of  the 
United  States,'  wherever  they  occur  in  this  chapter,  shall  be 
construed  to  mean  a  vessel  belonging  in  whole  or  in  part  to 
the  United  States,  or  any  citizen  thereof,  or  any  corporation 
created  by  or  under  the  laws  of  the  United  States,  or  of  any 
state,  territory,  or  district  thereof."  (Fed.  Stats.  Ann.,  2d 
ed.,  "Penal  Laws";  10  U.  S.  Comp.  Stats.  1916,  §  10,483, 
p.  12,928.) 

§  76.    Penalties  and  Forfeitures. 
Pecuniary  penalties  and  forfeitures. 

§43,  Jud.  Code  (Re-enacting  §  732,  Rev.  Stats.).  "All 
pecuniary  penalties  and  forfeitures  may  be  sued  for  and  re- 
covered either  in  the  district  where  they  accrue  or  in  the  dis- 
trict where  the  offender  is  found."  (5  Fed.  Stats.  Ann.,  2d 
ed.,  p.  475;  1  U.  S.  Comp.  Stats.  1916,  §  1025,  p.  1102.) 

Seizures  made  on  high  seas  for  forfeitures. 

§45,  Jud.  Code  (Re-enacting  §734,  Rev.  Stats.).  "Pro- 
ceedings on  seizures  made  on  the  high  seas,  for  forfeiture  und^r 
any  law  of  the  United  States,  may  be  prosecuted  in  any  dis- 
trict into  which  the  property  so  seized  is  brought  and  pro- 
ceedings instituted.  Proceedings  on  such  seizures  made  within 
any  district  shall  be  prosecuted  in  the  district  where  the  seiz- 
ure is  made,  except  in  cases  where  it  is  otherwise  provided." 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  476;  1  U.  S.  Comp.  Stats.  1916, 
§  1X)27,  p.  1102;  Foster's  Federal  Practice,  5th  ed.,  p.  188.) 


§  77-79,  Ch.  4      MANUAL  OF  FEDERAL  PROCEDURE.  38 

§  77.     Taxes  and  Internal  Revenue. 

§44,  Jud.  Code  '(Re-enacting  §733,  Rev.  Stats.}.  "Taxes 
accruing  under  any  law  providing  internal  revenue  may  be 
sued  for  an.d  recovered  either  in  the  district  where  the  liability 
for  such  tax  occurs  or  in  the  district  where  the  delinquent  re- 
sides." (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  476;  1  U.  S.  Comp. 
Stats.  1916,  §  1026,  p.  1102.) 

§  78.     Condemnation  Insurrectionary  Property. 

§46,  Jud.  Code  (Re-enacting  §  755,  Rev.  Stats.}.  "Pro- 
ceedings for  the  condemnation  of  any  property  captured, 
whether  on  the  high  seas  or  elsewhere  out  of  the  limits  of  any 
judicial  district,  or  within  any  district,  on  account  of  its  being 
purchased  or  acquired,  sold  or  given,  with  intent  to  use  or 
employ  the  same,  or  to  suffer  it"  to  be  used  or  employed,  in 
aiding,  abetting,  or  promoting  any  insurrection  against  the 
government  of  the  United  States,  or  knowingly  so  used  or 
employed  by  the  owner  thereof,  or  with  his  consent,  may  be 
prosecuted  in  any  district  where  the  same  may  be  seized,  or 
into  which  it  may  be  taken  and  proceedings  first  instituted." 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  477;  1  U.  S.  Comp.  Stats.  1916, 
§  1028,  p.  1104;  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  131; 
Foster's  Federal  Practice,  5th  ed.,  p.  188.) 

§  79.     Seizures  for  Forfeiture — Embargo  or  Insurrection. 

§  47,  Jud.  Code  (Re-enacting  §  564,  Rev.  Stats.}.  "Pro- 
ceedings on  seizures  for  forfeiture  of  any  vessel  or  cargo 
entering  any  port  of  entry  which  has  been  closed  by  the  Presi- 
dent in  pursuance  of  law,  or  of  goods  and  chattels  coming  from 
.a  state  or  section  declared  by  proclamation  of  the  President 
to  be  in  insurrection  into  other  parts  of  the  United  States, 
or  of  any  vessel  or  vehicle  conveying  such  property,  or  con- 
veying persons  to  or  from  such  state  or  section,  or  of  any 
vessel  belonging,  in  whole  or  in  part,  to  any  inhabitant  of 
such  state  or  section,  may  be  prosecuted  in  any  district  into 
which  the  property  so  seized  may  be  taken  and  proceedings 
instituted;  and  the  district  court  thereof  shall  have  as  full 
jurisdiction  over  such  proceedings  as  if  the  seizure  was  made 
in  that  district."  (5  Fed.  State.  Ann.  2d  ed.,  pp.  477,  478, 


39  TERRITORIAL  JURISDICTION — VENUE.       Ch.  4,  §§  80-82 

1  U.  S.  Comp.  Stats.  1916,  §  1029,  p.  1104;  Foster's  Federal 
Practice,  5th  ed.,  p.  188.) 

§  80.  Prosecutions  for  Failure  to  File  Tariffs,  Giving-  Rebates, 
etc. 

Part  §  1,  Act  Feb.  19,  1903,  c.  70S,  as  amended  §  2,  Act  June 
29,  1906,  c.  3591.  "Every  violation  of  this  section  shall  be 
prosecuted  in  any  court  of  the  United  States  having  juris- 
diction of  crimes  within  the  district  in  which  such  violation 
was  committed,  or  through  which  the  transportation  may  have 
been  conducted;  and  whenever  the  offense  is  begun  in  one 
jurisdiction  and  completed  in  another  it  may  be  dealt  with, 
inquired  of,  tried,  determined,  and  punished  in  either  juris- 
diction in  the  same  manner  as  if  the  offense  had  been  actually 
and  wholly  committed  therein."  (4  Fed.  Stats.  Ann.,  2d  ed., 
pp.  549,  550;  8  U.  S.  Comp.  Stats.  1916,  §  8597,  p.  9265.) 

It  is  sufficient  to  sustain  the  jurisdiction  of  a  court  that  the 
shipments  with  respect  to  which  it  is  charged  that  rebates  were 
granted  were  transported  into  the  district,  and  such  jurisdiction 
is  not  defeated  by  the  fact  that  the  arrangement  was  made,  or 
the  rebates  paid  or  settled  for,  in  another  district.  (Northern 
Central  Ky.  Co.  v.  United  States,  241  Fed.  25.) 

§  81.    Prosecutions  for  Violations  of  the  Sixteen  Hour  Law. 

Part  §  3,  Act  March  4,  1907,  c.  2939,  as  amended  by  §  1,  Act 
May  4,  1916,  c.  109.  Prosecutions  to  be  brought  "in  the  dis- 
trict court  of  the  United  States  having  jurisdiction  in  the 
locality  where  such  violations  shall  have  been  committed." 
(Fed.  Stats.  Ann.,  2d  ed.,  "Railroads";  8  U.  S.  Comp.  Stats. 
1916,  §  8679,  p.  9455.) 

§82.  Suits  Affecting  Orders  of  Interstate  Commerce  Com- 
mission. 

Part  Act  October  22,  1913,  c.  32.  "The  venue  of  any  suit 
hereafter  brought  to  enforce,  suspend,  or  set  aside,  in  whole 
or  in  part,  any  order  of  the  Interstate  Commerce  Commission 


§  83,  Ch.  4  MANUAL  OF   FEDERAL  PROCEDURE.  40 

shall  be  in  the  judicial  district  wherein  is  the  residence  of  the 
party  or  any  of  the  parties  upon  whose  petition  the  order  was 
made,  except  that  where  the  order  does  not  relate  to  trans- 
portation or  is  not  made  upon  the  petition  of  any  party  the 
venue  shall  be  in  the  district  where  the  matter  complained  of 
in  the  petition  before  the  Commission  arises,  and  except  that 
where  the  order  does  not  relate  either  to  transportation  or  to 
a'matter  so  complained  of  before  the  Commission  the  matter 
covered  by  the  order  shall  be  deemed  to  arise  in  the  district 
where  one  of  the  petitioners  in  court  has  either  its  principal 
office  or  its  principal  operating  office.  In  case  such  transporta- 
tion relates  to 'a  through  shipment,  the  term  'destination'  shall 
be  construed  as  meaning  final  destination  of  such  shipment. ' ' 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1108 ;  1  U.  S.  Comp.  Stats.  1916, 
§  994,  p.  833.) 

On  reversal  of  commerce  court,  the  supreme  court  will  remand 
to  the  district  court.  (The  Los  Angeles  Switching  Case,  234 
U.  S.  294,  58  L.  Ed.  1319,  34  Sup.  Ct.  814.) 

For  payment  of  money. 

§  16,  Act  of  February  4,  1887,  c.  104,  as  amended  §  5,  Act 
March,  2,  1889,  c.  382,  and  §  5,  Act  June  29,  1906,  c.  3591,  and 
§  13,  Act  June  18,  1910,  c.  309.  Suits  to  enforce  payment  of 
money  may  be  brought  in  the  district  court  "for  the  district 
in  which  he  resides  or  in  which  is  located  the  principal  operat- 
ing office  of  the  carrier,  or  through  which  the  road  of  the  car- 
rier runs,  or  in  any  state  court  of  general  jurisdiction  having 
jurisdiction  of  the  parties,  .  .  .  '  (4  Fed.  Stats.  Ann.,  2d  ed., 
p.  476;  8  U.  S.  Comp.  Stats.  1916,  §  8584,  pt.  (2),  p.  9222.) 

§  83.    Prosecutions  for  Injuries  to  Fortifications. 

Part  §  44,  Grim.  Code,  as  amended  Act  March  4, 1917,  c.  180. 
"  .  .  .  shall  be  punished  on  conviction  thereof  in  a  district 
or  circuit  court  of  appeals  of  the  United  States  for  the  district 
or  circuit  in  which  the  offense  is  committed,  or  into  which  the 
offender  is  first  brought,  by  a  fine  of  not  more  than  $5,000.  or 
by  imprisonment  for  a  term  not  exceeding  five  years,  or  by 
both,  in  the  discretion  of  the  court."  (Fed.  Stats.  Ann.,  2d 
ed.,  title  "Penal  Laws,"  Pamphlet  Supp.,  Nos.  9-10,  p.  73; 
U.  S.  Comp.  Stats.  1916,  §  10,208.) 


41  TERRITORIAL  JURISDICTION — VENUE.       Cll.  4,  §§  84-86 

§  44,  Grim.  Code,  as  amended  §  19,  Act  of  May  22,  1917,  by 
adding :  ' '  Provided,  That  offenses  hereunder  committed  within 
the  Canal  Zone  or  within  any  defensive  sea  areas  which  the 
President  is  authorized  to  establish  by  said  section,  shall  be 
cognizable  in  the  District  Court  of  the  Canal  Zone,  and  juris- 
diction is  hereby  conferred  upon  said  court  to  hear  and  deter- 
mine all  such  cases  arising  under  said  section  and  to  impose  the 
penalties  therein  provided  for  the  violation  of  any  of  the  provi- 
sions of  said  section."  (Fed.  Stats.  Ann.,  2d  ed.,  title  "Penal 
Laws,"  Pamphlet  Supp.,  No.  11,  pp.  55-56;  U.  S.  Comp.  Stats. 
1916,  §  10,208;  Adv.  Sheets,  241  Fed.  215.) 

§  84.  Prosecutions  of  Offenses  Against  the  Postal  Laws  in  Sell- 
ing Intoxicating  Liquors.  The  venue  of  prosecutions  for  using 
the  mails  for  advertisements,  etc.,  of  intoxicating  liquors  in- 
tended for  prohibition  states  is  designated  as  follows: 

Part  §5,  Act  March  3,  1917,  c.  162.  "  .  .  .  Any  person 
violating  any  provision  of  this  section  may  be  tried  and  pun- 
ished, either  in  the  district  in  which  the  unlawful  matter  or 
publication  was  mailed  or  to  which  it  was  carried  by  mail  for 
delivery,  according, to  direction  thereon,  or  in  which  it  was 
caused  to  be  delivered  by  mail  to  the  person  to  whom  it  was 
addressed."  (Fed.  Stats.  Ann.,  2d  ed.,  title  "Intoxicating 
Liquors,"  Pamphlet  Supp.,  Nos.  9-10,  p.  62;  U.  S.  Comp.  Stats. 
1916,  §  10,387b.) 

§  85.    Prosecutions  for  Violations  of  Immigration  Laws. 

Part  §25,  Act  February  15,  1917,  c.  -  —.  "...  Such 
prosecutions  or  suits  may  be  instituted  at  any  place  in  the 
United  States  at  which  the  violation  may  occur  or  at  which 
the  person  charged  with  such  violation  may  be  found.  .  .  .  ' 
(Pamphlet  Supp.,  Fed.  Stats.  Ann.,  2d  ed.,  Nos.  9-10,  p.  50, 
title,  "Immigration.") 

§86.  Issue  of  Venue  —  How  Raised.  Objections  as  to  the 
venue  of  actions  must  be  raised  at  the  earliest  possible  moment, 
as  this  is  a  personal  privilege,  and  may  be  waived  by  the  defend- 
ant's failure  to  seasonably  object. 


§  36,  Ch.  4  MANUAL  OF  FEDERAL  PROCEDURE.  42 

In  cases  of  removal  the  question  of  venue  may  be  important 
in  determining  whether  or  not  the  suit  was  one  of  which  the  dis- 
trict court  had  original  jurisdiction.  But  the  defect  will  be 
waived  if  not  put  in  issue  by  the  plaintiff  in  his  motion  to  remand. 
The  filing  of  petition  and  bond  for  removal  is  a  waiver  by  the 
defendant.  The  issue  should  be  raised  in  the  motion  to  remand. 
(In  re  Moore,  209  U.  S.  490,  14  Ann.  Gas.  1161,  52  L.  Ed.  904,  28 
Sup.  Ct.  706,  cited  in  American  Oil  &  Supply  Co.  v.  Western  Gas 
Const.  Co.  [2d  Cir.],  239  Fed.  506.) 

If  a  suit  is  originally  brought  in  the  federal  court  and  it  is 
not  brought  in  the  district  of  which  the  defendant  is  an  inhabi- 
tant (except  in  the  special  cases  heretofore  indicated),  or  if,  in 
case  of  diversity  of  citizenship,  the  suit  is  not  brought  in  the 
residence  district  of  the  plaintiff  or  defendant,  the  issue  as  to 
venue  would  be  raised  in  a  suit  in  equity  under  Rule  29  by  motion 
to  dismiss.  The  motion  to  dismiss  should  be  confined  to  that 
special  ground,  otherwise  it  may  amount  to  a  waiver.  (Alder 
Goldman  Commission  Co.  v.  Williams,  211  Fed.  530.) 

In  a  suit  at  law  the  issue  would  be  raised  in  that  form  of  plead- 
ing used  to  raise  jurisdictional  questions  in  the  state  court  of 
record  of  the  state  wherein  the  district  is  situated.  Generally  the 
pleading  would  be  a  demurrer  for  defects  apparent  on  the  face  of 
the  record. 

For  a  motion  to  dismiss,  the  following  form  is  suggested : 

"In  the  District  Court  of  the  United  States  for  the  District  of  — — , 

— —  Division. 


John  Doe, 

Plaintiff, 

vs. 

Eichard  Eoe, 

Defendant. 


MOTION  TO  DISMISS. 


Now  comes  the  defendant  in  the  above-entitled  action  and  moves  the 
court  to  dismiss  same  at  plaintiff's  costs  on  the  ground  that,  as  appears 
on  the  face  of  the  bill,  at  the  commencement  of  this  action  defendant  was 
not,  and  is  not  now,  an  inhabitant  of,  nor  residing  in  the  district  of 


43  TERRITORIAL  JURISDICTION — VENUE.  Cll.  4,  §  86 

,  where  this  suit  is  brought,  but  that  at  the   commencement  of  this 

action  and  now,  defendant  was,  and  is,  an  inhabitant  of,  and  resides  in  — 

county  which  is  in  the district  of  the  state  of and  not  the  district 

where  this  suit  is  brought.  , 

Solicitor." 

If  the  objection  be  that  he  is  not  sued  in  the  proper  division 
of  the  district,  the  word  "division"  may  be  substituted  for  district 
in  the  above  form. 

In  case  of  a  corporation,  the  allegation  may  be : 

"That  it  is  not  an  inhabitant  of  or  residing  in  the  county  of , 

district  of  ,  but  is  an  inhabitant  of  and  residing  in  county  in 

the  district  of  ,  where   its   principal   office   or  headquarters   are 

situated,  its  corporate  meetings  held  and  its  corporate  business  transacted. 

If  the  bill  has  the  necessary  allegations  as  to  citizenship,  which 
may  not  be  true,  the  issue  may  be  raised  in  the  answer  under 
Equity  Rule  29, 

"In  the  District  Court  of  the  United  States  in  the  District  of  , 

Division. 

John  Doe, 
Plaintiff, 


Richard  Eoe, 
Defendant. 


ANSWEB. 


Defendant  answering  plaintiff's  complaint  alleges: 

As  a  separate  defense,  denies  that  defendant  at  the  commencement  of  this 

suit  was  or  is  now  an  inhabitant  of  or  resident  of  the  division  of  — 

where  this  suit  is  brought,  but  alleges  that  at  the  commencement  of  the 

suit  defendant  was  and  now  is  an  inhabitant  of  ,  and  resides  in  - 

county,  which  is  in  the  district  of  the  state  of  ,  and,   therefore, 

this  action  is  not  properly  within  the  jurisdiction  of  this  court.  ..." 


§  90,  Ch.  5  MANUAL  OF  FEDERAL  PROCEDURE.  44 


CHAPTER  5. 

DISTRICT  COURT'S  JURISDICTION. 
SEC. 

90.  In  General. 

91.  District  Court — Jurisdiction  Exclusive  of  State  Courts. 

92.  Exclusive  Jurisdiction. 

93.  District  Court — Jurisdiction  Concurrent  With  that  of  State  Courts — 

Amount  in  Controversy. 

94.  Original  Jurisdiction. 

95.  Original  Jurisdiction — Interpleader  of  Insurance  Companies. 

96.  Jurisdiction — Prosecution — Violation  of  Immigration  Laws. 

97.  Jurisdiction  by  Assignment. 

98.  Agriculture. 

99.  Alien  Enemies. 

100.  Same — Duties  of  Marshal. 

101.  Customs  Duties. 

102.  Rivers,  Harbors  and  Canals — Actions  to  Remove  Obstructions. 

103.  White  Slave  Traffic. 

104.  Appellate  Jurisdiction  Chinese  Exclusion  Laws. 

105.  Appellate  Jurisdiction  Yellowstone  National  Park. 

106.  Jurisdiction  of  Crimes  on  Indian  Reservations  South  Dakota. 

107.  Power  to  Enforce  Foreign  Consular  Awards. 

108.  Powers  of  Foreign  Consuls  Over  Disputes  Between  Seamen. 

109.  Arrest  of  Seamen  on  Application  of  Consul. 

110.  Commitment  and  Discharge. 

111.  Jurisdiction  in  Cases  Transferred  from  Territorial  Courts. 

112.  Jurisdiction  Under  Reclamation  Act. 

113.  Jurisdiction  Under  Income  Tax  Law. 

114.  Jurisdiction  in  Arbitration  of  Disputes  Between  Common  Carriers  and 

Employees. 

§  90.  In  General.  Although  the  jurisdiction  of  the  federal 
courts  is  limited,  the  number  and  importance  of  cases  involving 
some  ground  of  federal  jurisdiction  is  considerable  and  is  con- 
stantly increasing. 

By  the  Judicial  Code  which  took  effect  January  1,  1912,  the 
United  States  circuit  courts  were  abolished  and  the  district  courts 
were  made  the  federal  courts  of  general,  original  jurisdiction. 

As  one  or  more  of  these  federal  district  courts  is  located  in 
every  state  in  the  United  States,  the  general  practitioner  should 


45  DISTRICT  COURT'S  JURISDICTION.  Ch.  5,  §  90 

be  concerned  with  the  scope  of  its  jurisdiction  and  mode  of  pro- 
cedure. The  reasons  why  a  practitioner  should  be  familiar  with 
federal  jurisdiction  and  procedure  are  as  follows:  (1)  such  court 
may  be  available  to  him  as  the  best  or  most  convenient  court  in 
which  to  bring  a  suit;  (2)  the  trial  of  a  case  brought  by  him  in  the 
state  court  may  be  prevented  by  his  adversary's  removal  of  the 
case  to  the  federal  court;  (3)  on  account  of  the  locality  or  bias 
of  a  state  court,  the  practitioner  may  find  it  desirable  to  remove 
the  suit  for  a  defendant  to  the  federal  court;  (4)  he  may  be  called 
upon  to  defend  a  suit  brought  in  the  federal  court;  (5)  he  may 
be  employed  to  pass  upon  a  title  litigated  in  the  federal  courts. 

The  original  jurisdiction  of  the  federal  district  court  is  set  out 
in  §  24,  Jud.  Code  (§  94  below),  part  of  which  is  made  exclusive 
by  §  256,  Jud.  Code  (§  92  below),  and  part  by  other  provisiona 
(§91  following),  the  remainder  being  concurrent  with  that  of 
state  courts  of  record  in  the  various  states  (§  93  below). 

Under  §  24,  Jud.  Code,  the  jurisdiction  of  the  district  courts  is 
limited  to  cases  involving  a  federal  question  (chapter  6,  post),  or 
diverse  citizenship  (chapter  7,  post),  also  with  respect  to  the 
amount  in  controversy  (chapter  8,  post),  and  the  denial  of  the 
right  of  certain  assignees  to  sue  unless  their  assignors  could  have 
brought  the  suits  in  the  federal  courts  (§  97  below). 

Considerable  volume  of  business  comes  into  the  federal  district 
courts  through  its  jurisdiction  on  removal  of  cases  from  the  state 
courts.  This  jurisdiction  on  removal  under  §  28  et  seq.,  Jud.  Code, 
is  limited  to  those  cases  of  concurrent  jurisdiction  of  which  the  dis- 
trict court  has  original  jurisdiction.  This  subject  is  treated  in  a 
separate  chapter,  chapter  9,  entitled,  "Removal  of  Causes — Juris- 
diction and  Procedure." 

Under  special  provisions  of  the  federal  statutes  giving  jurisdic- 
tion to  the  United  States  courts,  several  include  the  United  States 
district  court. 

The  United  States  district  court  has  jurisdiction  of  various 
matters ' under  the  titles,  "Agriculture"  (§  98,  infra),  "Alien 
Enemies"  (§99,  infra),  "Arbitration  Disputes,  Common  Carriers 


§  91,  Ch.  5  MANUAL  OP  FEDERAL  PROCEDURE.  46 

and  Employees"  (§  114,  infra),  "Customs  Duties"  (§  101,  infra), 
"Income  Tax  Law"  (§113,  infra),  "Reclamation  Act"  (§112, 
infra),  "Rivers,  Harbors,  and  Canals"  (§  102,  infra),  and  "White 
Slave  Traffic"  (§  103,  infra),  and  others. 

The  appellate- jurisdiction  of  the  district  court  is  given  by  the 
Chinese  exclusion  laws,  §  25,  Jud.  Code  (§  104,  infra),  over  Yellow- 
stone National  Park  by  §  26,  Jud.  Code  .(§  105,  infra),  over  crimes 
in  Indian  Reservation  in  South  Dakota  by  §  27,  Jud.  Code  (§  106, 
infra) . 

The  district  courts  are  given  power  to  eniorce  awards  of  foreign 
consuls  by  §  271,  Jud.  Code  (§  107,  infra). 

In  this  connection  we  set  out  the  powers  of  foreign  consuls  under 
§§  4079,  4080,  4081,  Rev.  Stats.  (§§  108,  109,  110,  infra). 

By  §  64,  Jud.  Code,  the  district  court  is  given  jurisdiction  of 
cases  transferred  from  territorial  courts  (§  111,  infra). 

The  grounds  of  federal  jurisdiction  are  treated  separately  as 
above  suggested  in  chapters  6  and  7,  entitled  respectively,  "Fed- 
eral Questions" — "Diverse  Citizenship." 

Chapter  8  treats  of  "Amount  in  Controversy"  as  affecting 
jurisdiction.  Chapter  4  treats  of  "Territorial  Jurisdiction — 
Venue."  Chapter  5,  Jud.  Code  (Appendix,  post),  gives  the 
boundaries  of  the  judicial  districts  and  divisions,  the  times  and 
places  of  holding  court. 

§  91.  District  Court — Jurisdiction  Exclusive  of  State  Courts. 
The  district  court's  exclusive  jurisdiction  extends  over  those  mat- 
ters peculiarly  within  the  scope  of  national  control,  such  as  case.s 
against  consuls  and  vice-consuls,1  admiralty  and  maritime  causes,2 
seizures  and  prizes,3  patents  and  copyrights,4  penalties  and  for- 
feitures under  the  federal  laws,5  crimes  and  offenses  of  federal 
cognizance,6  and  also  cases  where  Congress  has  legislated  to  the 
exclusion  of  state  control,  as  under  the  bankruptcy  laws.7  So, 

1  Subd.  18th,  §  24,  Jud.  Code,  subd.  8th,  §  256,  Jud.  Code. 

2  Subd.  3d,  §  24,  Jud.  Code,  subd.  3d,  §  256,  Jud.  Code. 
8  Subd.  3d,  §  24,  Jud.  Code.  subd.  4th,  §  256,  Jud.  Code. 

4  Subd.  7th,  §  24,  Jud.  Code,  subd.  5th,  §  256,  Jud.  Code. 

5  Subd.  9th.  §  24,  Jud.  Code,  subd.  2d,  §  256,  Jud.  Code. 
«  Subd.  2d,  §24,  Jud.  Code,  subd.  1st,  §  256,  Jud.  Code. 

7  Subd.  19th,  §  24,  Jud.  Code,  subd.  6th,  §  256,  Jud.  Code. 


47  DISTRICT  COURT'S  JURISDICTION.  Ch.  5,  §  92 

also,  though  not  mentioned  in  §  256,  Jud.  Code,  it  would  have  juris- 
diction, exclusive  of  the  state  courts,  of  suits  against  the  United 
States,  concurrently  with  the  court  of  claims.8  It  also  has  juris- 
diction exclusive  of  the  state  courts,  of  suits  for  the  unlawful  in- 
closure  of  public  lands,9  and  against  trusts,  monopolies  and  un- 
lawful combinations.10 

The  amount  involved  is  not  material  in  these  cases  of  exclusive 
jurisdiction.11 

§  24,  Jud.  Code,  is  quoted  in  full  §  94,  infra,  and   §  256,  Jud. 
Code,  is  quoted  §  92  below. 

§  92.    Exclusive  Jurisdiction. 

§  256,  Jud.  Code  (from  §  711,  Rev.  Stats.}.  "The  jurisdic- 
tion vested  in  the  courts  of  the  United  States  in  the  cases 
and  proceedings  hereinafter  mentioned,  shall  be  exclusive  of 
the  courts  of  the  several  states : 

"First.  Of  all  crimes  and  offenses  cognizable  under  the 
authority  of  the  United  States. 

"Second.  Of  all  suits  for  penalties  and  forfeitures  incurred 
under  the  laws  of  the  United  States. 

"Third.  Of  all  civil  causes  of  admiralty  and  maritime 
jurisdiction;  saving  to  suitors,  in  all  cases,  the  right  of  a 
common-law  remedy,  where  the  common  law  is  competent  to 
give  it.  (Part  old  par.  4,  §  711,  Rev.  Stats.,  and  part  par.  8, 
§  563,  Rev.  Stats.,  and  part  par.  6,  §  629,  Rev.  Stats.) 

"Fourth.  Of  all  seizures  under  the  laws  of  the  United 
States,  on  land  or  on  waters  not  within  admiralty  and  mari- 
time jurisdiction ;  of  all  prizes  brought  into  the  United  States ; 
and  of  all  proceedings  for  the  condemnation  of  property  taken 
as  prize. 

"Fifth.  Of  all  cases  arising  under  the  patent-right,  or 
copyright  laws  of  the  United  States. 

"Sixth.     Of  all  matters  and  proceedings  in  bankruptcy. 

"Seventh.  Of  all  controversies  of  a  civil  nature,  where  a 
state  is  a  party,  except  between  a  state  and  its  citizens,  or 
between  a  state  and  citizens  of  other  states,  or  aliens. 

8  Subd.  20th,  §  24,  Jud.  Code,  §  145,  Jud.  Code. 
»  Subd.  21st,  §  24,  Jud.  Code. 

10  Subd.  23d,  §  24,  Jud.  Code,  Loewe  v.  Lawlor,  130  Fed.  633. 

11  Laat  part  subd-  1,  §  24,  Jud.  Code. 


§§  93-94,  Ch.  5       MANUAL  OF  FEDERAL  PROCEDURE.  48 

"Eighth.  Of  all  suits  and  proceedings  against  ambassadors, 
-or  other  public  ministers,  or  their  domestics,  or  domestic  ser- 
vants, or  against  consuls  or  vice  consuls."  (5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  921;  2  U.  S.  Comp.  Stats.  1916,  §  1233,  p.  1841; 
Foster's  Federal  Practice,  5th  ed.,  pp.  16,  21;  Simkins'  Fed- 
eral Equity  Suit,  3d  ed.,  pp.  41,  47.) 

§  93.  District  Court — Jurisdiction  Concurrent  With  that  of 
State  Courts — Amount  in  Controversy.  The  federal  district 
courts  also  have  an  extensive  jurisdiction  which  is  not  exclusive 
but  concurrent  with  that  of  the  state  courts  of  record  in  the  vari- 
ous states  where  the  several  districts  lie. 

Cases  where  the  matter  in  controversy  exceeds,  exclusive  of  inter- 
est and  costs,  the  sum  or  value  of  $3,000,  and  involving  either  a 
federal  question  or  diverse  citizenship,  may  be  brought  either  in 
the  federal-  district  court  of  the  proper  district,  or  on  proper  pro- 
ceedings may  be  removed  thereto  from  state  court  wherein  such 
district  is  located.  The  amount  in  controversy  is  not  material 
under  subdivisions  second  to  twenty-fifth,  inclusive,  §  24,  Jud.  Code, 
quoted  in  full  below,  §  94. 

§  94.     Original  Jurisdiction. 

124,  Jud.  Code  (Draurn  from  §  563,  Rev.  Stats.).  "The 
district  courts  shall  have  original  jurisdiction  as  follows: — 

"First.  (Where  the  United  States  are  plaintiffs;  and  of 
civil  suits  at  common  law  or  in  equity.)  Of  all  suits  of  a 
civil  nature,  at  common  law  or  in  equity,  brought  by  the 
United  States,  or  by  any  officer  thereof  authorized  by  law  to 
sue,  or  between  citizens  of  the  same  state  claiming  lands  under 
grants  from  different  states;  or  where  the  matter  in  contro- 
versy exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value 
of  three  thousand  dollars,  and  (a)  arises  under  the  Consti- 
tution or  laws  of  the  United  States,  or  treaties  made,  or  which 
shall  be  made,  under  their  authority,  or  (b)  is  between  citi- 
zens of  different  states,  or  (c)  is  between  citizens  of  a  state 
and  foreign  states,  citizens,  or  subjects.  No  district  court 
shall  have  cognizance  of  any  suit  (except  upon  foreign  bills 
of  exchange)  to  recover  upon  any  promissory  note  or  other 


49  DISTRICT  COURT  'g  JURISDICTION.  Ch.  5,  §  94 

chose  in  action  in  favor  of  any  assignee,  or  of  any  subsequent 
holder  if  such  instrument  be  payable  to  bearer,  and  be  not 
made  by  any  corporation,  unless  such  suit  might  have  been 
prosecuted  in  such  court  to  recover  upon  said  note  or  other 
chose  in  action  if  no  assignment  had  been  made:  Provided, 
however,  That  the  foregoing  provision  as  to  the  sum  or  value 
of  the  matter  in  controversy  shall  not  be  construed  to  apply 
to  any  of  the  cases  mentioned  in  the  succeeding  paragraphs  of 
this  section. 

"Second.  (Of  crimes  and  offenses.)  Of  all  crimes  and 
offenses  cognizable  under  the  authority  of  the  United  States. 

"Third.  (Of  admiralty  causes,  seizures,  and  prizes.)  Of 
all  civil  causes  of  admiralty  and  maritime  jurisdiction,  sav- 
ing to  suitors  in  all  cases  the  right  of  a  common-law  remedy 
where  the  common  law  is  competent  to  give  it,  and  to  claim- 
ants the  rights  and  remedies  under  the  workmen's  compen- 
sation law  of  any  State;  of  all  seizures  on  land  or  waters 
not  within  admiralty  and  maritime  jurisdiction;  of  all  prizes 
brought  into  the  United  States ;  and  of  all  proceedings  for  the 
condemnation  of  property  taken  as  prize. 

"Fourth.  (Of  suits  under  any  law  relating  to  the  slave 
trade.)  Of  all  suits  arising  under  any  law  relating  to  the, 
slave  trade. 

"Fifth.  (Of  cases  under  internal  revenue,  customs,  and 
tonnage  laws.)  Of  all  cases  arising  under  any  law  providing 
for  internal  revenue,  or  from  revenue  from  imports  or  ton- 
nage, except  those  cases  arising  under  any  law  providing  rev- 
enue from  imports,  jurisdiction  of  which  has  been  conferred 
upon  the  court  of  customs  appeals. 

"Sixth.  (Of  suits  under  postal  laws.)  Of  all  cases  aris- 
ing under  the  postal  laws. 

"Seventh.     (Of  suits  under  the  patent,  the  copyright,  and 
the  trademark  laws.)     Of  all  suits  at  law  or  in  equity  arising *"\ 
under  the  patent,  the  copyright,  and  the  trademark  laws. 

"Eighth.  ,  (Of  suits  for  violation  of  interstate  commerce 
laws.)  Of  all  suits  and  proceedings  arising  under  any  law 
regulating  commer.ce,  except  those  suits  and  proceedings  exclu- 
sive jurisdiction  of  which  has  been  conferred  upon  the  com- 
merce court.  (Commerce  court  now  abolished  and  jurisdic- 
tion transferred  to  district  court.  See  ch.  9  of  the  Judicial 
Code,  in  our  Appendix.) 

Manual — 4 


§  94,  Ch.  5  MANUAL  OP  FEDERAL  PROCEDURE.  50 

"Ninth.  (Of  penalties  and  forfeitures.)  Of  all  suits  and 
proceedings  for  the  enforcement  of  penalties  and  forfeitures 
incurred  under  any  law  of  the  United  States. 

"Tenth.  (Of  suite  on  debentures.)  Of  all  suits  by  the 
assignee  of  any  debenture  for  drawback  of  duties,  issued  under 
any  law  for  the  collection  of  duties,  against  the  person  to 
whom  such  debenture  was  originally  granted,  or  against  any 
indorser  thereof,  to  recover  the  amount  of  such  debenture. 

"Eleventh.  (.Of  suits  for  injuries  on  account  of  acts  done 
under  laws  of  the  United  States.)  Of  all  suits  brought  by 
any  person  to  recover  damages  for  any  injury  to  his  person  or 
property  on  account  of  any  act  done  by  him,  under  any  law 
of  the  United  States,  for  the  protection  or  collection  of  any 
of  the  revenues  thereof,  or  to  enforce  the  right  of  citizens  of 
the  United  States  to  vote  in  the  several  states. 

"Twelfth.  (Of  suits  concerning  civil  rights.)  Of  all  suits 
authorized  by  law  to  be  brought  by  any  person  for  the  re- 
covery  of  damages  on  account  of  any  injury  to  his  person  or 
property,  or  of  the  deprivation  of  any  right  or  privilege  of  a 
citizen  of  the  United  States,  by  any  act  done  in  furtherance 
of  any  conspiracy  mentioned  in  section  nineteen  hundred  and 
eighty,  Revised  Statutes. 

"Thirteenth.  (Of  suits  against  persons  having  knowledge 
of  conspiracy,  etc.)  Of  all  suits  authorized  by  law  to  be 
brought  against  any  person  who,  having  knowledge  that  any 
of  the  wrongs  mentioned  in  section  nineteen  hundred  and 
eighty,  Revised  Statutes,  are  about  to  be  done,  and  having 
power  to  prevent  or  aid  in  preventing  the  same,  neglects  or 
refuses  so  to  do,  to  recover  damages  for  any  such  wrongful 
act. 

"Fourteenth.  (Of  suits  to  redress  the  deprivation,  under 
color  of  law,  of  civil  rights.)  Of  all  suits  at  law  o.r  in  equity 
authorized  by  law  to  be  brought  by  any  person  to  redress  the 
deprivation,  under  color  of  any  law,  statute,  ordinance,  regu- 
lation, custom,  or  usage  of  any  state,  of  any  right,  privilege, 
or  immunity,  secured  by  the  Constitution  of  the  United  States, 
or  of  any  right  secured  by  any  law  of.  the  United  States  pro- 
viding for  equal  rights  of  citizens  of  the  United  States,  or  of 
all  persons  within  the  jurisdiction  of  the  United  States. 

"Fifteenth.  (Of  suits  to  recover  certain  offices.)  Of  all 
suits  to  recover  possession  of  any  office,  except  that  of  elector 


51  DISTRICT  COURT'S  JURISDICTION.  Ch.  5,  §  94 

of  President  or  Vice  President,  Representative  in  or  delegate 
to  Congress,  or  member  of  a  state  legislature,  authorized  by 
law  to  be  brought,  wherein  it  appears  that  the  sole  question 
touching  the  title  to  such  office  arises  out  of  the  denial  of  the 
right  to  vote  to  any  citizen  offering  to  vote,  on  account  of 
race,  color,  or  previous  condition  of  servitude :  Provided,  That 
such  jurisdiction  shall  extend  only  so  far  as  to  determine  the 
rights  of  the  parties  to  such  office  by  reason  oLthe  denial  of 
the  right  guaranteed  by  the  Constitution  of  the  United  States, 
and  secured  by  any  law,  to  enforce  the  right  of  citizens  of  the 
United  States  to  vote  in  all  the  states. 

"Sixteenth.  (Of  suits  against  national  banking  associa- 
tions.) Of  all  cases  commenced  by  the  United  States,  or  by 
direction  of  any  officer  thereof,  against  any  national  banking 
association,  and  cases  for  winding  up  the  affairs  of  any  such 
bank ;  and  of  all  suits  brought  by  any  banking  association 
established  in  the  district  for  which  the  court  is  held,  under 
the  provisions  of  title,  'National  Banks,'  Revised  Statutes, 
to  enjoin  the  Comptroller  of  the  Currency,  or  any  receiver  act- 
ing under  his  direction,  as  provided  by  said  title.  And  all 
national  banking  associations  established  under  the  laws  of 
the  United  States  shall,  for  the  purpose  of  all  other  actions 
by  or  against  them,  real,  personal,  or  mixed,  and  all  suits  in 
equity,  be  deemed  citizens  of  the  states  in  which  they  are  re- 
spectively located. 

"Seventeenth.  (Of  suits  by  aliens  for  torts.)  Of  all  suits 
brought  by  any  alien  for  a  tort  only,  in  violation  of  the  laws 
of  nations  or  of  a  treaty  of  the  United  States. 

"Eighteenth.  (Of  suits  against  consuls  and  vice  consuls.) 
Of  all  suits  against  consuls  and  vice  consuls. 

"Nineteenth.  (Of  suits  and  proceedings  in  bankruptcy.) 
Of  all  matters  and  proceedings  in  bankruptcy. 

"Twentieth.  (Of  suits  against  the  United  States.)  Con- 
current with  the  court  of  claims,  of  all  claims  not  exceeding 
ten  thousand  dollars  founded  upon  the  Constitution  of  the 
United  States  or  any  law  of  Congress,  or  upon  any  regula- 
tion of  an  Executive  Department,  or  upon  any  contract,  ex- 
press or  implied,  with  the  government  of  the  United  States, 
or  for  damages,  liquidated  or  unliquidated,  in  cases  not  sound- 
ing in  tort,  in  respect  to  which  claims  the  party  would  be  en- 
titled to  redress  against  the  United  States,  either  in  a  court 
of  law,  equity,  or  admiralty,  if  the  United  States  were  suable, 


§  94,  Ch.  5  MANUAL  OF  FEDERAL  PROCEDURE.  52 

and  of  all  set-offs,  counterclaims,  claims  for  damages,  whether 
liquidated  or  unliquidated,  or  other  demands  whatsoever  on 
the  part  of  the  government  of  the  United  States  against  any 
claimant  against  the  government  in  said  court:  Provided, 
however,  That  nothing  in  this  paragraph  shall  be  construed 
as  giving,  to  either  the  district  courts  or  the  court  of  claims 
jurisdiction  to  hear  and  determine  claims  growing  out  of  the 
late  Civil  War,  and  commonly  known  as  'war  claims,'  or  to 
hear  and  determine  other  claims  which  had  been  rejected  or 
reported  on  adversely  prior  to  the  third  day  of  March,  eighteen 
hundred  and  eighty-seven,  by  any  court,  department,  or  com- 
mission authorized  to  hear  and  determine  the  same,  or  to  hear 
and  determine  claims  for  pensions ;  or  as  giving  to  the  district 
courts  jurisdiction  of  cases  brought  to  recover  fees,  salary,  or 
compensation  for  official  services  of  officers  of  the  United 
States  or  brought  for  such  purpose  by  persons  claiming  as 
such  officers  or  as  assignees  or  legal  representatives  thereof; 
but  no  suit  pending  on  the  twenty-seventh  day  of  June, 
eighteen  hundred  and  ninety-eight,  shall  abate  or  be  affected 
by  this  provision :  And  provided,  further,  That  no  suit  against 
the  government  of  the  United  States  shall  be  allowed  under 
this  paragraph  unless  the  same  shall  have  been  brought  within 
six  years  after  the  right  accrued  for  which  the  claim  is  made : 
Provided,  That  the  claims  of  married  women  first  accrued 
during  marriage,  of  persons  under  the  age  of  twenty-one 
years,  first  accrued  during  minority,  and  of  idiots,  lunatics, 
insane  persons,  and  persons  beyond  the  seas  at  the  time  the 
claim  accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the 
suit  be  brought  within  three  years  after  the  disability  has 
ceased;  but  no  other  disability  than  those  enumerated  shall 
prevent  any  claim  from  being  barred,  nor  shall  any  of  the 
said  disabilities  operate  cumulatively.  All  suits  brought  and 
tried  under  the  provisions  of  this  paragraph  shall  be  tried  by 
the  court  without  a  jury. 

"Twenty-first.  (Of  suits  for  the  unlawful  inclosure  of 
public  lands.)  Of  proceedings  in  equity,  by  writ  of  injunc- 
tion, to  restrain  violations  of  the  provisions  of  laws  of  the 
United  States  to  prevent  the  unlawful  inclosure  of  public 
lands;  and  it  shall  be  sufficient  to  give  the  court  jurisdiction 
if  service  of  original  process  be  had  in  any  civil  proceeding 
on  any  agent  or  employee  having  charge  or  control  of  the 
inclosure. 


53  DISTRICT  COURT'S  JURISDICTION.  Ch.  5,  §  95 

"Twenty-second.  (Of  suits  under  immigration  and  con- 
tract labor  laws.)  Of  all  suits  and  proceedings  arising  under 
any  law  regulating  the  immigration  of  aliens,  or  under  the 
contract  labor  laws. 

"Twenty-third.  (Of  suits  against  trusts,  monopolies,  and 
unlawful  combinations.)  Of  all  suits  and  proceedings  aris- 
ing under  any  law  to  protect  trade  and  commerce  against 
restraint  and  monopolies. 

"Twenty-fourth.  (Of  suits  concerning  allotments  of  land 
to  Indians.)  Of  all  actions,  suits,  or  proceedings  involving 
the  right  of  any  person,  in  whole  or  in  part  of  Indian  blood 
or  descent,  to  any  allotment  of  land  under  any  law  or  treaty. 
And  the  judgment  or  decree  of  any  such  court  in  favor  of 
any  claimant  to  an  allotment  of  land  shall  have  the  same  effect, 
when  properly  certified  to  the  Secretary  of  the  Interior,  as  if 
such  allotment  had  been  allowed  and  approved  by  him;  but 
this  provision  shall  not  apply  to  any  lands  now  or  heretofore 
held  by  either  of  the  Five  Civilized  Tribes,  the  Osage  Nation 
of  Indians,  nor  to  any  of  the  lands  within  the  Quapaw  Indian 
Agency :  Provided,  That  the  right  of  appeal  shall  be  allowed 
to  either  party  as  in  other  cases.  (Subd.  24  as  amended  act 
Dec.  21,  1911,  ch.  5,  37  Stats,  at  L.  46.) 

"Twenty-fifth.  (Of  partition  suits  where  United  States 
is  joint  tenant.)  Of  suits  in  equity  brought  'by  any  tenant 
in  common  or  joint  tenant  for  the  partition  of  lands  in  cases 
where  the  United  States  is  one  of  such  tenants  in  common  or 
joint  tenants,  such  suits  to  be  brought  in  the  district  in  which 
such  land  is  situate." 

(4  Fed.  Stats.  Ann.,  2d  ed.,  pp.  838-862 ;  1  U.  S.  Comp.  Stats. 
1916,  §991,  p.  552;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  41, 
42,  47,  fi3,  87,  91,  95,  168,  210,  317,  775,  809,  812,  815,  824.  828, 
834;  Foster's  Federal  Practice,  5th  ed.,  pp.  18,  22,  122,  184,  199, 
367,  379,  380,  642,  1524,  1932,  2012.) 

§  95.  Original  Jurisdiction — Interpleader  of  Insurance  Com- 
panies. 

Act  Feb.  22,  1917,  c.  113.  (Original  jurisdiction;  bills  of 
interpleader  filed  by  insurance  companies,  etc.;  process; 
hearing;  orders  and  decrees;  district  in  which  bills  shall  be 
filed.) 


§  95,  Ch.  5  MANUAL  OF  FEDERAL  PROCEDURE.  54 

"The  district  courts  of  the  United  States  shall  have  origi- 
nal cognizance  to  entertain  suits  in  equity  begun  by  bills  of 
interpleader  where  the  same  are  filed  by  any  insurance  com- 
pany or  fraternal  beneficiary  society,  duly  verified,  and 
where  it  is  made  to  appear  by  such  bill  that  one  or  more  per- 
sons, being  bona  fide  claimants  against  such  company  or 
society,  reside  within  the  jurisdiction  of  said  court ;  that 
such  company  or  society  has  made  or  issued  some  policy  of 
insurance  or  certificate  of  membership  providing  for  the  pay- 
ment of  a  sum  of  money  of  at  least  $500  as  insurance  or 
benefits  to  a  beneficiary  or  beneficiaries  or  to  the  heirs,  next 
of  kin,  or  legal  representative  of  the  person  insured  or  mem- 
ber; that  two  or  more  adverse  claimants,  citizens  of  different 
States,  are  claiming  or  may  claim  to  be  entitled  to  such  in- 
surance or  benefits  and  that  such  company  or  society  de- 
posits the  amount  of  such  insurance  or  benefits  with  the  clerk 
of  said  court  and  abide  the  judgment  of  said  court.  In  all 
such  cases  the  court  shall  have  the  power  to  issue  its  process 
for  said  claimants,  returnable  at  such  time  as  the  said  court 
or  a  judge  thereof  shall  determine,  which  shall  be  addressed 
to  and  served  by  the  United  States  marshals  for  the  respec- 
tive districts  wherein  said  claimants  reside  or  may  be  found; 
to  hear  said  bill  of  interpleader  and  decide  thereon  accord- 
ing to  the  practice  in  equity;  to  discharge  said  complainant 
from  further  liability  upon  the  payment  of  said  insurance 
or  benefit  as  directed  by  the  court,  less  complainant's  actual 
court  costs;  and  shall  have  the  power  to  make  such  orders 
and  decrees  as  may  be  suitable  and  proper  and  to  issue  the 
necessary  writs  usual  and  customary  in  such  cases  for  the 
purpose  of  carrying  out  such  orders  and  decrees:  'Provided, 
That  in  all  cases  where  a  beneficiary  or  beneficiaries  are  named 
in  the  policy  of  insurance  or  certificate  of  membership  or 
where  the  same  has  been  assigned  and  written  notice  thereof 
shall  have  been  given  to  the  insurance  company  or  fraternal 
benefit  society,  the  bill  of  interpleader  shall  be  filed  in  the 
district  where  the  beneficiary  or  beneficiaries  may  reside.'  ' 
(Pamphlet  Supp.  Fed.  Stats.  Ann.  Nos.  9-10,  p.  65;  U.  S. 
Comp.  Stats.  1916,  §  991a,  Advance  Sheets,  239  Fed.  No.  1, 
p.  56.) 


55  DISTRICT  COURT'S  JURISDICTION.       Ch.  5,  §§!::>-!) 7 

§  96.  Jurisdiction  —  Prosecution  —  Violation  of  Immigration 
Laws. 

Part  §   25,  Act  Feb.  15,  1917,  c. .     "That  the  district 

courts  of  the  United  States  are  hereby  invested  with  full 
jurisdiction  of  all  causes,  civil  and  criminal,  arising  under 
any  of  the  provisions  of  this  Act.  That  it  shall  be  the  duty 
of  the  United  States  district  attorney  of  the  proper  district 
to  prosecute  every  such  suit  when  brought  by  the  United 
State;  under  this  act.  .  .  ."  (Pamphlet  Supp.  Fed.  Stats. 
Ann.  Nos.  9-10,  p.  50,  "Immigration.") 

§  97.  Jurisdiction  by  Assignment.12  In  the  latter  part  of 
subdivision  first,  §  24,  Jud.  Code,  quoted  in  full  §  94,  supra,  it  is 
provided  as  follows: 

"No  district  court  shall  have  cognizance  of  any  suit  (ex- 
cept upon  foreign  bills  of  exchange)  to  recover  upon  any 
promissory  note  or  other  chose  in  action  in  favor  of  any  as- 
signee, or  of  any  subsequent  holder,  if  such  instrument  be 
payable  to  bearer,  and  be  not  made  by  any  corporation,  unless 
such  suit  might  have  been  prosecuted  in  such  court  to  recover 
upon  said  note  or  other  chose  in  action  if  no  assignment  had 
been  made." 

The  purpose  of  this  provision  is  to  prevent  the  conferring  of 
jurisdiction  on  the  "district  courts  by  fraudulent  assignments 
creating  an  apparent  diversity  of  citizenship.13 

The  exceptions  permitting  assignees  to  bring  suit  are:  1st, 
Suits  upon  foreign  bills  of  exchange;  2d,  suits  that  might  have 
been  prosecuted  in  such  courts  if  no  assignment  had  been  made; 
3d,  suits  upon  choses  in  action  made  by  a  corporation  payable  to 
bearer.14 

An  action  in  equity  by  the  assignee  of  an  oil  and  gas  lease 
to  restrain  others  from  operating  the  land  for  oil  and  gas  is  not 

12  See  note  4  Fed.  Stats.  Ann.,  2d  ed.,  pp.  974-988;  1  U.  S.  Comp.  Stats. 
1916,  pp.  715-732;  Simkins'  Federal  Equity  Suit,  3d  ed..  pp.  209-223. 

13  See  Barclay  v.  Levee  Commissioners,  1  Woods  (U.  S.),  254,  2  Fed.  Cas. 
No.  997. 

14  See  Newgass  v.  New  Orleans.  33  Fed.  196,  198;  Wilson  v.  Knox  County, 
43  Fed.  481;  New  Orleans  v.  Quinlan,  173  U.  S.  191,  43  L.  Ed.  664,  19  Sup. 
Ct.  329;  Quinlan  v.  New  Orleans,  92  Fed.  695;  Skinner  v.  Bar,  77  Fed.  816. 


§  97,  Ch.  5  MANUAL  OF  FEDERAL  PROCEDURE.  56 

a  suit  to  recover  upon  a  chose  in  action  as  an  assignee  within 
this  provision.  (Shaffer  v.  Marks,  241  Fed.  139.) 

Another  exception  is  where  the  assignor  is  merely  the  nominal 
owner.15  The  objection  may  be  raised  at  any  time.16 

The  matter  being  jurisdictional,  where  the  citizenship  of  the 
original  payee  is  material,  it  should  be  shown  in  the  bill,  dis- 
tinctly alleged,  and  not  by  inference.  The  form  of  allegation 
may  be  as  follows: 

"John  Doe,  plaintiff,  alleges  that  at  all  times  since  the  assignment  to  him 

of  the  within  cause  of  action,  he  was  and  is  a  citizen  of  the  state  of  , 

and  a  resident  of  the    county   of  in  said    state;    that  his    assignor, 

Henry  Smith,  at  all  times  hereinafter  mentioned  was  and  is  a  citizen   of 

the  state  of  and  a  resident  of  the  county  of  in  said  state,  and 

competent  to  have  prosecuted  in  this  court  a  suit  upon  the  cause  of  action 
herein  set  out  if  no  assignment  had  been  made;  that  defendant,  Richard 
Roe,  at  all  times  hereinafter  mentioned,  was  and  is  a  citizen  of  the  state 
of  residing  in  said  county  of  said  state." 

It  is  not  enough  to  allege  in  the  complaint  that  the  assignor  was 
a  citizen  of  a  different  state  from  defendant,  but  there  must  be 
shown  diverse  citizenship  of  the  assignor  and  the  defendant  at 
the  time  of  bringing  the  suit.17 

In  order  to  remove  a  case  from  a  state  to  the  federal  court, 
the  bill  filed  in  the  state  court  must  show  proper  citizenship  of 
the  assignors.18  •--*.  tt 

Objection  may  be  made  by  motion  to  dismiss  if  the  defect  ap- 
pears on  the  face  of  the  complaint,  or  in  the  answer,  under  Equity 
Rule  29,  in  equity  suits ;  or  in  an  action  at  law  by  an  appropriate 
form  of  state  pleading  provided  to  raise  jurisdictional  points. 
The  following  is  suggested  as  matter  to  be  incorporated  in  what- 
ever form  of  pleading  is  used  to  raise  the  objection: 

"Defendant  further  alleges  that  the  bill  of  complaint  shows  that  plaintiff 
derives  title  and  right  to  sue  through  an  assignment  from  Henry  Smith, 
that  said  Henry  Smith  was  and  is  now  a  citizen  of  the  state  of  ;  and, 

15  Kirven  v.  Virginia  Carolina  Chemical  Co.,  145  Fed.  2S8,  7  Ann.  Cas. 
219,  76  C.  C.  A.  172. 

16  Utah-Nevada  Co.  v.  De  Lamar,  133  Fed.  113,  66  C.  C.  A.  179. 

17  Benjamin  v.  City  of  New  Orleans,  71  Fed.  758;  same  case  circuit  court 
of  appeals,  74  Fed.  417,  20  C.  C.  A.  591. 

18  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  221. 


57  DISTRICT  COURT'S  JURISDICTION.     Ch.  5,  §§  98-100 

therefore,  that  there  is  no  diversity  of  citizenship  on  which  to  base  the 
jurisdiction  of  this  court  in  this  suit." 

§  98.    Agriculture. 

§5,  Act  of  April  26,  1910,  c.  191.  "That  it  shall  be  the 
duty  of  each  district  attorney  to  whom  the  Secretary  of 
Agriculture  shall  report  any  violation  of  this  act,  or  to  whom 
any  director  of  experiment  station  or  agent  of  any  state, 
territory,  or  the  District  of  Columbia,  under  authority  of 
the  Secretary  of  Agriculture,  shall  present  satisfactory  evi- 
dences of  any  such  violation,  to  cause  appropriate  proceed- 
ings to  be  commenced  and  prosecuted  in  the  proper  courts 
of  the  United  States,  without  delay,  for  the  enforcement,  of 
the  penalties  as  in  such  case  herein  provided."  (36  Stats. 
332 ;  1  Fed.  Stats.  Ann.,  2d  ed.,  p.  222 ;  8  U.  S.  Comp.  Stats. 
1916,  §8769.) 

§  99.    Alien  Enemies. 

§4069,  Rev.  Stats.  "After  any  such  proclamation  has 
been  made,  the  several  courts  of  the  United  States  having 
criminal  jurisdiction,  and  the  several  justices  and  judges  of 
the  courts  of  the  United  States,  are  authorized,  and  it  shall 
be  their  duty,  upon  complaint  against  any  alien  enemy  resi- 
dent and  at  large  within  such  jurisdiction  or  district,  to  the 
danger  of  the  public  peace  or  safety,  and  contrary  to  the 
tenor  or  intent  of  such  proclamation,  or  other  regulations 
which  the  President  may  have  established,  to  cause  such  nlien 
to  be  duly  apprehended  and  conveyed  before  such  court, 
judge  or  justice;  and  after  a  full  examination  and  hearing  on 
such  complaint,  and  sufficient  cause  appearing,  to  order  such 
alien  to  be  removed  out  of  the  territory  of  the  United  States, 
or  to  give  sureties  for  his  good  behavior,  or  to  be  otherwise 
restrained,  conformably  to  the  proclamation  or  regulations 
established  as  aforesaid,  and  to  imprison  or  otherwise  secure 
such  alien,  until  the  order  which  may  be  so  made  shall  be  per- 
formed." (1  Fed.  Stats.  Ann.,  2d  ed.,  p.  365  j  7  U.  S.  Comp. 
Stats.  1916,  §  7617.) 

§  100.    Same — Duties  of  Marshal. 

§4070,  Rev.  Stats.  "When  an  alien  enemy  is  required  by 
the  President,  or  by  ordor  of  any  court,  judge,  or  justice,  to 


§  101,  Ch.  5  MANUAL  OP  FEDERAL  PROCEDURE.  58 

depart  and  to  be  removed,  it  shall  be  the  duty  of  the  marshal 
of  the  district  in  which  "he  shall  be  apprehended  to  provide 
therefor,  and  to  execute  such  order  in  person,  or  by  hig 
deputy,  or  other  discreet  person  to  be  employed  by  him,  by 
causing  a  removal  of  such  alien  out  of  the  territory  of  the 
United  States;  and  for  such  removal  the  marshal  shall  have 
the  warrant  of  the  President,  or  of  the  court,  judge,  or  jus- 
tice ordering  the  same,  as  the  case  may  be."  (1  Fed.  Stats. 
Ann.,  2d  ed.,  p.  365;  7  U.  S.  Comp.  Stats.  1916,  §7618.) 

§  101.    Customs  Duties. 

§  3,  Act  June  10,  1910,  c.  283.  "That  any  licensed  custom- 
house broker  aggrieved  by  the  decision  of  the  Secretary  of  the 
Treasury  may,  within  thirty  days  thereafter,  and  not  after- 
wards, apply  to  the  United  States  circuit  court  for  the  cir- 
cuit in  which  the  collection  district  is  situated  for  a  review 
of  such  decision.  Such  application  shall  be  made  by  filing 
.  in  the  office  of  the  clerk  of  said  court  a  petition  praying  relief 
in  the  premises.  Thereupon  the  court  shall  immediately  give 
notice  in  writing  of  such  application  to  the  Secretary  of  the 
Treasury,  who  shall  forthwith  transmit  to  said  court  the 
record  and  evidence  taken  in  the  case,  together  with  a  state- 
ment of  his  decision  therein.  The  filing  of  such  application 
shall  operate  as  a  stay  of  the  revocation  of  the  license.  The 
matter  may  be  brought  on  to  be  heard  before  the  said  court 
in  the  same  manner  as  a  motion,  by  either  the  United  States 
district  attorney  or  the  attorney  for  the  custom-house  broker, 
and  the  decision  of  said  United  States  circuit  court  for  the 
circuit  in  which  the  collection  district  is  situated  shall 
be  upon  the  merits  as  disclosed  by  the  record  and  be  final, 
and  the  proceedings  remanded  to  the  Secretary  of  the  Treas- 
ury for  further  action  to  be  taken  in  accordance  with  the  terms 
of  the  decree.  (36  Stats.  465;  2  Fed.  Stats.  Ann.,  2d  ed., 
p.  1008;  6  U.  S.  Comp.  Stats.  1916,  §  5552.) 

See  subd.  5,  §  24,  Jud.  Code,  quoted  §  94  above,  giving  the 
district  court  original  jurisdiction  of  cases  arising  under  the 
customs  laws. 


59  DISTRICT  COURT'S  JURISDICTION.     Ch.  5,  §§  102-104 

§  102.    Rivers,    Harbors    and    Canals  —  Actions    to    Remove 
Obstructions. 

Part  §  5,  Act  June  21,  1906,  c.  3508,  as  amended  Act  June 
23,  1910,  c.  360.  "And  the  removal  of  any  structures  erected 
or  maintained  in  violation  of  the  provisions  of  this  act  or  the 
order  or  direction  of  the  Secretary  of  War  or  the  Chief  of 
Engineers  made  in  pursuance  thereof  may  be  enforced  by 
injunction,  mandamus,  or  other  summary  process,  upon  ap- 
plication to  the  circuit  court  in  the  district  in  which  such 
structure  may,  in  whole  or  in  part,  exist,  and  proper  pro- 
ceedings to  this  end  may  be  instituted  under  the  direction 
of  the  Attorney  General  of  the  United  States  at  the  request 
of  the  Chief  of  Engineers  or  the  Secretary  of  War;  and  in 
case  of  any  litigation  arising  from  any  obstruction  or  al- 
leged obstruction  to  navigation  created  by  the  construction 
of  any  dam  under  this  act  the  cause  or  question  arising  may 
be  tried  before  the  circuit  court  of  the  United  States  in  any 
district  in  which  any  portion  of  said  obstruction  or  dam 
touches."  (Fed.  Stats.  Ann.,  2d  ed.,  title  "Rivers,  Harbors 
and  Canals";  10  U.  S.  Comp.  Stats.  1916,  §9980,  p.  12,277.) 

§  103.    White  Slave  Traffic. 

§  5,  Act  June  25,  1910,  c.  395.  "That  any  violation  of  any 
of  the  above  sections  two,  three,  and  four  shall  be  prosecuted 
in  any  court  having  jurisdiction  of  crimes  within  the  district 
in  which  said  violation  was  committed,  or  from,  through,  or 
into  which  any  such  woman  or  girl  may  have  been  carried 
or  transported  as  a  passenger  in  interstate  or  foreign  com- 
merce, or  in  any  territory,  or  the  District  of  Columbia,  con- 
trary to  the  provisions  of  any  of  said  sections."  (36  Stats. 
826;  Fed.  Stats.  Ann.,  2d  ed.,  title  "White  Slave  Traffic"; 
8  U.  S.  Comp.  Stats.  1916,  §  8816.) 

§  104.    Appellate  Jurisdiction  Chinese  Exclusion  Laws. 

§  25,  Jud.  Code  (Draum  from  Act  Sept.  13,  1888,  c.  1013, 
§13).  "The  district  courts  shall  have  appellate  jurisdiction 
of  the  judgments  and  orders  of  United  States  commissioners 
in  cases  arising  under  the  Chinese  exclusion  laws."  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  1063;  1  U.  S.  Comp.  Stats.  1916,  §  1007; 
Foster's  Federal  Practice,  5th  cd.,  pp.  20,  2414,  2418.) 


§§  105-107,  Ch.  5      MANUAL  OP  FEDERAL  PROCEDURE.  60 

§  105.    Appellate  Jurisdiction  Yellowstone  National  Park. 

§26,  Jud.  Code  (Re-enacting  Act  May  7,  1894,  c.  72). 
"The  district  court  for  the  district  of  Wyoming  shall  have 
jurisdiction  of  all  felonies  committed  within  the  Yellowstone 
National  Park,  and  appellate  jurisdiction  of  judgments  in 
cases  of  conviction  before  the  commissioner  authorized  to  bo 
appointed  under  section  five  of  an  act  entitled,  'An  Act  to 
Protect  the  Birds  and  Animals  in  Yellowstone  National 
Park,  and  to  Punish  Crimes  in  Said  Park,  and  for  Other  Pur- 
poses,' approved  May  seventh,  eighteen  hundred  and  ninety- 
four."  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  1063;  1  U.  S.  Comp. 
Stats.  1916,  §  1008 ;  Foster's  Federal  Practice,  5th  ed.,  pp.  21, 
263,  2420.) 

§  106.    Jurisdiction  of  Crimes  on  Indian  Reservations   South 
Dakota. 

§57,  Jud.  Code  (Re-enacting  Act  Feb.  2,  1903,  c.  351). 
"The  district  court  of  the  United  States  for  the  district  of 
South  Dakota  shall  have  jurisdiction  to  hear,  try,  and  deter- 
mine all  actions  and  proceedings  in  which  any  person  shall 
be  charged  with  the  crime  of  murder,  manslaughter,  rape, 
assault  with  intent  to  kill,  arson,  burglary,  larceny,  or  as- 
sault with  a  dangerous  weapon,  committed  within  the  limits 
of  any  Indian  reservation  in  the  state  of  South  Dakota." 
,  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  1063;  1  U.  S.  Comp.  Stats. 
1916,  §1009;  Foster's  Federal  Practice,  5th  ed.,  p.  21.) 

§  107.     Power  to  Enforce  Foreign  Consular  Awards. 

§271,  Jud.  Code  (Re-enacting  §728,  Rev.  Stats.).  "The 
district  courts  and  the  United  States  commissioners  shall  have 
power  to  carry  into  effect,  according  to  the  true  intent  and 
meaning  thereof,  the  award  or  arbitration  or  decree  of  any 
consul,  vice  consul,  or  commercial  agent  of  any  foreign  nation, 
made  or  rendered  by  virtue  of  authority  conferred  on  him  as 
such  consul,  vice  consul,  or  commercial  agent,  to  sit  as  judge 
or  arbitrator  in  such  differences  as  may  arise  between  the  cap- 
tains and  crews  of  the  vessels  belonging  to  the  nation  whose 
interests  are  committed  to  his  charge,  application  for  the 
exercise  of  such  power  being  first  made  to  such  court  or 
commissioner,  by  petition  of  such  consul,  vice  consul,  or  com- 


61  DISTRICT  COURT'S  JURISDICTION.  Ch.  5,  §  108 

mercial  agent.  And  said  courts  and  commissioners  may 
issue  all  proper  remedial  process,  mesne  and  final,  to  carry 
into  full  effect  such  award,  arbitration,  or  decree,  and  to  en- 
force obedience  thereto  by  imprisonment  in  the  jail  or  other 
place  of  confinement  in  the  district  in  which  the  United 
States  may  lawfully  imprison  any  person  arrested  under  the 
authority  of  the  United  States,  until  such  award,  arbitration, 
or  decree  is  complied  with,  or  the  parties  are  otherwise  dis- 
charged therefrom,  by  the  consent  in  writing  of  such  consul, 
vice  consul,  or  commercial  agent,  or  his  successor  in  office, 
or  by  the  authority  of  the  foreign  government  appointing 
such  consul,  vice  consul,  or  commercial  agent :  Provided,  how- 
ever, That  the  expenses  of  the  said  imprisonment  and  main- 
tenance of  the  prisoners,  and  the  cost  of  the  proceedings, 
shall  be  borne  by  such  foreign  government,  or  by  its  consul, 
vice  consul,  or  commercial  agent  requiring  such  imprison- 
ment. The  marshals  of  the  United  States  shall  serve  all 
such  process,  and  do  all  other  acts  necessary  and  proper  to 
carry  into  effect  the  premises  under  the  authority  of  said 
courts  and  commissioners."  (5  Fed.  Stats.  Ann.,  2d  ed., 
p.  1057;  2  U.  S.  Comp.  Stats.  1916,  §1248;  Foster's  Federal 
Practice,  5th  ed.,  p.  20.) 

§  108.    Powers  of  Foreign   Consuls   Over  Disputes   Between 
Seamen. 

§4079,  Rev,  Stats.  "Whenever  it  is  stipulated  by  treaty 
or  convention  between  the  United  States  and  any  foreign 
nation  that  the  consul  general,  consuls,  vice  consuls,  or  con- 
sular or  commercial  agents  of  each  nation,  shall  have  ex- 
clusive jurisdiction  of  controversies,  difficulties,  or  disorders 
arising  at  sea  or  in  the  waters  or  ports  of  the  other  nation,  be- 
tween the  master  or  officers  and  any  of  the  crew,  or  between 
any  of  the  crew  themselves,  of  any  vessel  belonging  to  the  na- 
tion represented  by  such  consular  officer,  such  stipulations 
shall  be  executed  and  enforced  within  the  jurisdiction  of  the 
United  States  as  hereinafter  declared.  But  before  this  sec- 
tion shall  take  effect  as  to  the  vessels  of  any  particular  nation 
having  such  treaty  with  the  United  States,  the  President 
shall  be  satisfied  that  similar  provisions  have  been  made  for 
the  execution  of  such  treaty  by  the  other  contracting  party, 


§§  109-110,  Ch.  5      MANUAL  OF  FEDERAL  PROCEDURE.  62 

and  shall  issue  his  proclamation  to  that  effect,  declaring 
this  section  to  be  in  force  as  to  such  nation."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  57 ;  7  U.  S.  Comp.  Stats.  1916,  §  7629.) 

§  109.    Arrest  of  Seamen  on  Application  of  Consul. 

§  4080,  Rev.  Stats.  ' '  In  all  cases  within  the  purview  of 
the  preceding  section  the  consul  general,  consul,  or  other 
consular  or  commercial  authority  of  such  foreign  nation 
charged  with  the  appropriate  duty  in  the  particular  case, 
may  make  application  to  any  court  of  record  of  the  United 
States,  or  to  any  judge  thereof,  or  to  any  commissioner, 
of  a  circuit  court,  setting  forth  that  such  controversy,  diffi- 
culty, or  disorder  has  arisen,  briefly  stating  the  nature 
thereof,  and  when  and  where  the  same  occurred,  and  ex- 
hibiting a  certified  copy  or  extract  of  the  shipping  articles, 
roll,  or  other  proper  paper  of  the  vessel,  to  the  effect  that 
the  person  in  question  is  of  the  crew  or  ship's  company  of 
such  vessel ;  and  further  stating  and  certifying  that  such  per- 
son has  withdrawn  himself,  or  is  believed  to  be  about  to  with- 
draw himself,  from  the  control  and  discipline  of  the  master 
and  officers  of  the  vessel,  or  that  he  has  refused,  or  is  about 
to  refuse,  to  submit  to  and  obey  the  lawful  jurisdiction  of 
such  consular  or  commercial  authority  in  the  premises;  and 
further  stating  and  certifying  that,  to  the  best  of  the  knowl- 
edge, and  belief  of  the  officer  certifying,  such  person  is  not 
a  citizen  of  the  United  States.  Such  application  shall  be 
in  writing  and  duly  authenticated  by  the  consular  or  other 
sufficient  official  seal.  Thereupon  such  court,  judge,  or  com- 
missioner shall  issue  his  warrant  for  the  arrest  of  the  person 
so  complained  of,  directed  to  the  marshal  of  the  United 
States  for  the  appropriate  district,  or  in  his  discretion  to 
any  person,  being  a  citizen  of  the  United  States,  whom  he 
may  specially  depute  for  the  purpose,  requiring  such  person 
to  be  brought  before  him  for  examination  at  a  certain  time 
and  place. "  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  58 ;  7  U.  S.  Comp. 
Stats.  1916,  §  7630.) 

§  110.     Commitment  and  Discharge. 

§4081,  Rev.  Stats.     "If,  on    such    examination,  it  is   made 
to  appear  that  the  person  so  arrested  is  a  citizen  of  the  United 


63  DISTRICT  COURT'S  JURISDICTION.  Ch.  5,  §  111 

States,  he  shall  be  forthwith  discharged  from  arrest,  and 
shall  be  left  to  the  ordinary  course  of  law.  But  if  this  is 
not  made  to  appear,  and  such  court,  judge,  or  commissioner 
finds,  upon  the  papers  hereinbefore  referred  to,  a  sufficient 
prima  facie  case  that  the  matter  concerns  only  the  internal 
order  and  discipline  of  such  foreign  vessel,  or,  whether  in 
its  nature  civil  or  criminal,  does  not  affect  directly  the  execu- 
tion of  the  laws  of  the  United  States,  or  the  rights  and  duties 
of  any  citizen  of  the  United  States,  he  shall  forthwith,  by 
his  warrant,  commit  such  person  to  prison,  where  prisoners 
under  sentence  of  a  court  of  the  United  States  may  be  law- 
fully committed,  or,  'in  his  discretion,  to  the  master  or  chief 
officer  of  such  foreign  vessel,  to  be  subject  to  the  lawful  orders, 
control,  and  discipline  of  such  master  or  chief  officer,  and  to 
the  jurisdiction- of  the  consular  or  commercial  authority  of 
the  nation  to  which  such  vessel  belongs,  to  the  exclusion  of 
any  authority  or  jurisdiction  in  the  premises  of  the  United 
States  or  any  state  thereof.  No  person  shall  be  detained 
more  than  two  months  after  his  arrest,  but  at  the  end  of  that 
time  shall  be  set  at  liberty  and  shall  not  again  be  arrested 
for  the  same  cause.  The-  expenses  of  the  arrest  and  the 
detention  of  _the  person  so  arrested  shall  be  paid  by  the  con- 
sular officers  making  the  application."  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  59;  7  U.  S.  Comp.  Stats.  1916,  §  7631,  p.  8143.) 

So  much  of  section  4081  of  the  Revised  Statutes  as  relates  to 
the  arrest  or  imprisonment  of  officers  and  seamen  deserting  or 
charged  with  desertion  from  merchant  vessels  of  foreign  na- 
tions in  the  United  States  and  territories  and  possessions  thereof, 
and  for  the  co-operation,  aid  and  protection  of  competent  legal 
authorities  in  effecting  such  arrest  or  imprisonment,  is  repealed 
by  §  17,  Act  March  4,  1915,  c.  153,  U.  S.  Comp.  Stats.  1916,  §  8382b, 
p.  8912. 

§  111.  Jurisdiction  in  Gases  Transferred  from  Territorial 
Courts. 

§  64,  Jud.  Code  (Re-enacting  substantially  §  569,  Rev. 
Stats.).  "When  any  territory  is  admitted  as  a  state,  and  a 
district  court  is  established  therein,  the  said  district  court 
shall  take  cognizance  of  all  cases  which  were  pending  and 


§§  112-114,  Ch.  5       MANUAL  OF  FEDERAL  PROCEDURE.  64 

undetermined  in  the  trial  courts  of  such  territory,  from  the 
judgments  or  decrees  to  be  rendered  in  which  writs  of  error 
could  have  been  sued  out  or  appeals  taken  to  the  Supreme 
Court  or  to  the  circuit  court  of  appeals,  and  shall  proceed  to 
hear  and  determine  the  same."  (5  Fed.  Stats.  Ann.,  2d  ed., 
p.  540;  1  U.  S.  Comp.  Stats.  1916,  §  1046.) 

§  112.    Jurisdiction  Under  Reclamation  Act. 

§5,  Act  August  9,  1912,  c.  278.  ,  "That  jurisdiction  of 
suits  by  the  United  States  for  the  enforcement  of  the  pro- 
visions of  this  act  is  hereby  conferred  on  the  United  States 
district  courts  of  the  districts  in  which  the  lands  are  situated." 
(Fed.  Stats.  Ann.,  2d  ed.,  title  "Waters";  5  U.  S.  Comp. 
Stats.  1916,  §  4732.) 

The  United  States  by  injunction  may  restrain  the  diversion  of 
Boater.     (U.  S.  v.  Union  Gap  Irr.  Co.,  209  Fed.  274.) 

§  113.    Jurisdiction  Under  Income  Tax  Law. 

§20,  Act  Sept.  8,  1916, 'c.  463.  "That  jurisdiction  is 
hereby  conferred  on  the  district  courts  of  the  United  States 
for  the  district  within  which  any  person  summoned  under  this 
title  to  appear  to  testify  or  to  produce  books  shall  reside, 
to  compel  such  attendance,  production  of  books,  and  testi- 
mony by  appropriate  process.  (Pamphlet  Supp.  Fed.  Stats. 
Ann.,  2d  ed.,  title  "Internal  Revenue,"  No.  8,  p.  97;  6  U.  S. 
Comp.  Stats.  1916,  §  6336s,  p.  7359.) 

§  T14.    Jurisdiction  in  Arbitration  of  Disputes  Between  Com- 
mon Carriers  and  Employees. 

Part  §  5,  Act  July  15,  1913,  c.  6.  Arbitrators  under  the 
above  act  "may  invoke  the  aid  of  the  United  States  courts  to 
compel  witnesses  to  attend  and  testify  and  to  produce  such 
books,  papers,  contracts,  agreements,  and  documents  to  the 
same  extent  and  under  the  same  conditions  and  penalties  r.s 
is  provided  for  in  the  act  to  regulate  commerce  approved 
February  fourth,  1887,  and  amendments  thereto."  (Fed. 
Stats.  Ann.,  2d  ed.,  title  "Labor";  8  U.  S.  Comp.  Stats.  1916, 
§8670.) 


65  DISTRICT  COURT'S  JURISDICTION.  Ch.  5,  §  114 

§  8,  Act  July  15,  1913,  c.  6.  "That  the  award,  being  filed 
in  the  clerk's  office  of  a  district  court  of  the  United  States  as 
hereinbefore  provided,  shall  go  into  practical  operation,  and 
judgment  shall  be  entered  thereon  accordingly  at  the  ex- 
piration of  ten  days  from  such  filing,  unless  within  ten  days 
either  party  shall  file  exceptions  thereto  for  matter  of  law 
apparent  on  the  record,  in  which  case  said  award  shall  go 
into  practical  operation,  and  judgment  be  entered  accord- 
ingly, when  such  exceptions  shall  have  been  finally  disposed 
of  either  by  said  district  court  or  on  appeal  therefrom.  At 
the  expiration  of  ten  days  from  the  decision  of  the  district 
court  upon  exceptions  taken  to  said  award  as  aforesaid  judg- 
ment shall  be  entered  in  accordance  with  said  decision,  un- 
less during  said  ten  days  either  party  shall  appeal  there- 
from to  the  circuit  court  of  appeals.  In  such  case  only  such 
portion  of  the  record  shall  be  transmitted  to  the  appellate 
court  as  is  necessary  to  the  proper  understanding  and  con- 
sideration of  questions  of  law  presented  by  said  exceptions 
and  to  be  decided.  The  determination  of  the  circuit  court  of 
appeals  upon  said  questions  shall  be  final,  and,  being  certi- 
fied by  the  clerk  thereof  to  the  district  court,  judgment  pur- 
suant thereto  shall  thereupon  be  entered  by  said  district  court. 
If  exceptions  to  an  award  are  finally  sustained,  judgment  shall 
be  entered  setting  aside  the  award  in  whole  or  in  part;  but 
in  such  case  the  parties  may  agree  upon  a  judgment  to  be 
entered  disposing  of  the  subject-matter  of  the  controversy, 
which  judgment  when  entered  shall  have  the  same  force  and 
effect  as  judgment  entered  upon  an  award.  Nothing  in  this 
act  contained  shall  be  construed  to  require  an  employee  to 
render  personal  service  without  his  consent,  and  no  injunc- 
tion or  other  legal  process  shall  be  issued  which  shall  compel 
the  performance  by  any  employee  against  his  will  of  a  contract 
for  personal  labor  or  service."  (Fed.  Stats.  Ann.,  2d  ed.,  title 
"Labor";  8  U.  S.  Comp.  Stats.  1916,-  §8673;  Georgia  etc. 
By.  Co.  v.  Brotherhood,  etc.,  217  Fed.  755,  132  C.  C.  A.  559.) 

M»nn*l— ft 


120,  Cil.  6  MANUAL  OF  iJ'KDEKAL  i'iiOCED URB.  b'G 


CHAPTER  6. 

FEDERAL  QUESTIONS. 

SEC. 

120.  What  is  a  Federal  Question! 

121.  Arises  in  Suits  With  Federal  Officers  Involving  Official  Acts. 

122.  Arises   in   Suits   With   Federal    Corporations   Existing   Under   Federal 

Laws. 

123.  Exception — Suits  With  National  Banks  Other  Than  by  or  Against  Of- 

ficers of  the  United  States. 

124.  Arising  Under  the  Constitution. 

125.  As  a  Ground  of  Original  Jurisdiction. 

126.  As  a  Ground  for  Removal. 

127.  Citizenship  not  Material  in  Suits  Involving  a  Federal  Question  Ex- 

cept When  Affecting  Venue. 

128.  Amount  Required  to  be  in  Controversy. 

129.  Question  must  Appear  on  the  Face  of  the  Bill  in  the  Federal  Court. 

130.  How  Questions  must  Appear  in  a  State  Court  to  be  Removed  to  Federal 

Court. 

131.  Plea  of  Res  Adjudicata  as  Raising  a  Federal  Question. 

132.  Raising  the  Issue  as  to  Federal  Question. 

§  120.  What  is  a  Federal  Question?  A  federal  question  is 
one  arising  under  the  constitution  or  a  law  of  the  United  States 
or  treaties  made,  whenever  the  correct  decision  of  the  suit  de- 
pends upon  the  construction  of  either,  or  when  the  title  or  right 
set  up  by  the  party  may  be  defeated  by  one  construction  or 
sustained  by  the  opposite  construction.1 

A  federal  question  does  not  arise  merely  because  it  becomes 
necessary  in  the  progress  of  the  litigation  to  construe  the  federal 
constitution,  laws  or  treaties.2 

1  Cohens   v.   Virginia,   6   Wheat.    (U.   S.)    379,   5   L.   Ed.   285;    Osborn   v. 
Bank  of  United  States,  9  Wheat.  (U.  S.)  822,  6  L.  Ed.  224;  Oregon  v.  Three 
Sisters  Irr.  Co.,  158  Fed.  346;  Hall  v.  Chicago  etc.  R.  R.  Co.,  149  Fed.  564. 

2  Miller  v.  Illinois  Central  R.  Co.,  168  Fed.  982;  Leggett  v.  Great  North- 
ern R.  Co.,  180  Fed.  314. 


67  FEDERAL  QUESTIONS.  Ch.  6,  §  121 

§  121.  Arises  in  Suits  With  Federal  Officers  Involving  Offi- 
cial Acts. 

Part  §  24,  Jud.  Code.  ' '  The  district  court  shall  have  origi- 
nal jurisdiction  as  follows: 

"First.  Of  all  suits  of  a  civjl  nature,  at  common  law  or  in 
equity,  brought  by  the  United  States,  or  by  an  officer  thereof 
authorized  by  law  to  sue.  ..."  (Quoted  above  in  full,  §  94.) 

Suits  brought  by  federal  officers  find  their  authority  in  this  sec- 
tion and  preceding  provisions  of  the  law  of  like  character.  Suits 
against  federal  officers  stand  on  a  different  footing  and  are  dis- 
cussed hereafter.  A  receiver  of  a  national  bank  appointed  by  a 
comptroller  of  currency  comes  within  this  clause,  and  may  sue 
without  regard  to  the  citizenship  of  the  parties  or  the  amount  in- 
volved.3 So,  also,  an  agent  of  a  national  bank  who  has  displaced 
a  receiver  comes  under  the  rule,4  and  a  postmaster-general  suing 
under  the  official  bond  of  a  postmaster.5 

Suits  against  United  States  officers  do  not  come  under  the  above- 
quoted  provision,6  but  are  held  to  arise  under  the  laws  of  the 
United  States  as  necessarily  involving  the  construction  thereof. 

"An  action  against  a  United  States  marshal  and  his  deputy, 
growing  out  of  their  acts  in  executing  the  process  of  a  court  of  the 
United  States,  is,  regardless  of  citizenship  of  the  parties,  within 
the  jurisdiction  of  the  United  States  circuit  (now  district)  court 
for  the  proper  district;  and  this  is  so  even  where  there  is  no  dis- 
puted question  of  federal  law  in  the  case."7 

"A  case  in  which  an  attack  upon  the  official  acts  of  a  United 
States  marshal  is  made  covertly,  by  suppressing  the  facts  which 
constitute  an  essential  part  of  the  res  gestae  in  the  first  pleading,  is 
none  the  less  a  case  arising  under  the  laws  of  the  United  States. ' ' 8 

3  Gibson  v.  Peters,  150  U.  S.  342,  37  L.  Ed.  1104,  14  Sup.  Ct.  134;  Scho- 
field  v.  Palmer,  134  Fed.  753;  Murray  v.  Chambers,  151  Fed.  142. 

•*  McConville  v.  Oilmour,  36  Fed.  277,  1  L.  R.  A.  498. 

"•  Postmaster-General  v.  Early,  12  Wheat.  (U.  S.)  136,  6  L.  Ed.  577; 
Postmaster-General  v.  Furber.  4  Mason,  333,  19  Fed.  Gas.  No.  11,308. 

«  Hallam  v.  Tillinghast,  75  Fed.  849. 

7  Wood  v.  Drake,  70  Fed.  882,  citing  Bock  v.  Perkins,  139  U.  S.  628,  35 
L.  Ed.  314,  11  Sup.  Ct.  677;  Grant  v.  Spokane  Nat.  Bank,  47  Fed.  673. 

«  Ibid. 


§  121,  Ch.  6  MANUAL  OP  FEDERAL  PROCEDURE.  68 

"The  national  government  must  be  permitted  to  exercise  its 
power  within  the  states  through  its  own  agencies.  The  national 
courts  are  the  proper  tribunals  for  adjudicating  of  questions  as  to 
the  validity  of  their  own  process,  and  the  lawfulness  of  the  acts  of 
their  own  ministers  in  executing  the  same. ' ' 9 

The  following  are  illustrations  of  suits  by  and  against  federal 
officers  held  to  involve  federal  question  by  reason  of  the  character 
of  the  party : 

Action  against  executors  and  heirs  of  an  internal  revenue  col- 
lector to  recover  taxes  alleged  to  have  been  illegally  collected  by 
such  collector ; 10  a  suit  upon  a  bond  of  the  clerk  of  the  circuit 
court ;  u  on  bond  of  a  marshal ; 12  to  recover  damages  for  wrongful 
levy  by  marshal;13  suit  on  government  contractor's  bond.14 

Special  provision  is  made  for  removal  of  cases  against  a  United 
States  officer  acting  under  the  civil  rights  laws. 

Part  §  31,  Jud.  Code15  (Re-enacting  §  641,  Rev.  Stats.}. 
"When  any  civil  suit  or  criminal  prosecution  is  commenced  in 
any  state  court,  for  any  cause  whatsoever,  .  .  .  against  any 
officer,  civil  or  military,  or  other  person,  for  any  arrest  or  im- 
prisonment or  other  trespasses  or  wrongs  made  or  committed 
by  virtue  of  or  under  color  of  authority  derived  from  any  law 
providing  for  equal  rights  as  aforesaid,  or  refusing  to  do  any 
act  on  the  ground  that  it  would  be  inconsistent  with  such  law, 
such  suit  or  prosecution  may,  upon  the  petition  of  such  de- 
fendant, filed  in  said  state  court  at  any  time  before  the  trial  or 
final  hearing  of  the  cause  stating  the  facts  and  verified  by 
oath,  be  removed  for  trial  into  the  next  district  court  to  be 
heard  in  the  district  where  it  is  pending.  ..."  (Quoted 
in  full  infra,  §  207.) 

»  Wood  v.  Drake,  70  Fed.  881-883,  and  cases  cited. 

10  Sinking  Fund  Commissioners  v.  Buckner,  48  Fed.  533;  see,  also,  Orner 
v.  Saunders,  3  Dill.  284,  18  Fed.  Cas.  No.  10,584. 

11  Howard  v.  United  States,  184  U.  S.  681,  46  L.  Ed.  754,  22  Sup.  Ct.  543. 

12  Feibelman  v.  Packard,  109  U.  S.  421,  27  L.  Ed.  984,  3  Sup.  Ct.  289. 

13  Hurst  v.  Cobb,  61  Fed.  1.     But  see  McKee  v.  Bains,  10  Wall.  (U.  S.) 
22,  19  L.  Ed.  860,  where  a  suit  against  a  marshal  for  trespass  in  levying  on 
goods  for  a  third  party,  held  not  to  involve  a  Federal  question. 

14  Mullin  v.  United  States,  109  Fed.  817,  48  C.  C.  A.  677. 

15  Constitutional,    Ex    parte    Virginia,    100    U.    S.    339,    25    L.    Ed.    676; 
Strauder  v.  West  Virginia,  100  U.  S.  310,  25  L.  Ed.  667;  California  v.  Chue 
Fan,  42  Fed.  865. 


69  FEDERAL  QUESTIONS.  Ch.  6,  §  122 

Federal  receivers.  It  was  formerly  held  that  a  federal  question 
arose  in  the  case  of  receivers  appointed  by  federal  courts  by  virtue  of 
a  federal  appointment.  But  it  is  now  held  that  such  appointment 
does  not  raise  a  federal  question  so  as  to  allow  removal  to  a  fed- 
eral court  on  that  ground.16 

§  66,  Jud.  Code,  permits  a  federal  receiver  to  be  sued  without 
previous  leave  of  the  court  in  respect  to  any  act  or  transaction  of 
his  in  carrying  on  the  business  connected  with  the  property. 
(Quoted  in  full  infra,  §  1083.) 

§  122.  Arises  in  Suits  With  Federal  Corporations  Existing 
Under  Federal  Laws.  A  federal  corporation  is  organized  un- 
der and  depends  upon  a  federal  law.  It  is  held  that  a  suit  against 
a  federal  corporation  therefore  involves  a  federal  question  irre- 
spective of  the  citizenship  of  the  parties  or  any  other  law  involved. 
If  a  complaint  filed  in  the  state  court  shows  on  its  face  that  the 
defendant  corporation  is  one  organized  under  federal  laws,  ex- 
cept in  cases  of  national  banks,17  the  suit  may  be  removed  to  the 
federal  court  as  presenting  a  federal  question.18 

It  has  even  been  held  that  the  suit  is  removable,  though  there  is 
nothing  in  the  plaintiff's  pleading  showing  that  defendant  is  a  fed- 
eral corporation.19  But  a  different  holding  appears  in  Oregon 
Short  Line  etc.  R.  Co.  v.  Skottowe,  162  U.  S.  490,  40  L.  Ed.  1048, 
16  Sup.  Ct.  869. 

§§  5  and  6,  Act  of  Jan.  28,  1915,  c.  22.  "§  5.  (Jurisdic- 
tion of  United  States  Courts — Action  by  or  against  railroad.) 
No  court  of  the  United  States  shall  have  jurisdiction  of  any 
action  or  suit  by  or  against  any  railroad  company  upon  the 

16  Pope  v.  Louisville  etc.  B.  Co.,  173  U.  S.  573,  43  L.  Ed.  814,  19  Sup. 
Ct.  500;  Dale  v.  Smith.  182  Fed.  360;  People  v.  Bleecker  St.  etc.  R.  Co.,  178 
Fed.  156;  Pepper  v.  Rogers,  128  Fed.  987;  Rural  Home  Telephone  Co.  v. 
Powers,  176  Fed.  986. 

n  §  123,  post. 

18  Pacific  Railroad  Removal  Cases,  115  U.  S.  1,  29  L.  Ed.  319,  5  Sup.  Ct. 
1113. 

19  Texas  etc.  R.  Co.  v.  Cody,  166  U.  S.  606,  41  L.  Ed.  1132,  17  Sup.  Ct. 
703;  Supreme  Lodge,  etc.  v.  Wilson,  66  Fed.  785,  14  C.  C.  A.  264;  Sullivan 
v.  Barnard,  81  Fed.  886;   Pitkin  v.  Cowen,  91  Fed.  599;   Gold  Washing  & 
Water  Co.  v.  Keyes,  96  U.  S.  199,  24  L.  Ed.  656. 


§  123,  Ch.  6  MANUAL  OP  FEDERAL  PROCEDURE.  70 

ground  that  said  railroad  company  was  incorporated  under 
an  Act  of  Congress."  (38  Stats.  804;  6  Fed.  Stats.  Ann., 
2d  ed.,  title  "Judiciary";  2  U.  S.  Comp.  Stats.  1916,  §  1233a, 
p.  1889.) 

§  6.  (Effect  of  Act — Pending  cases — Amendment  or  re- 
peal of  existing  acts.)  That  this  Act  shall  not  affect  cases 
now  pending  in  the  Supreme  Court  of  the  United  States  or 
cases  in  which  writs  of  error  or  appeals  have  been  allowed  at 
the  date  of  its  approval.  And  nothing  in  this  Act  shall  be 
deemed  to  repeal,  amend,  or  modify  the  provisions  of  an  Act 
entitled  'An  Act  providing  for  writs  of  error  in  certain  in- 
stances in  criminal  cases,'  approved  March  second,  nineteen 
hundred  and  seven."  (38  Stats.  804;  6  Fed.  Stats.  Ann., 
2d  ed.,  title  "  Judiciary  "j  3  U.  S.  Comp.  Stats.  1916,  §  1704a, 
p.  3567.) 

§  123.  Exception— Suits  With  National  Banks  Other  Than  by 
or  Against  Officers  of  the  United  States. 

Subd.  16,  §  24.  "Of  all  cases  commenced  by  the  United 
States,  or  by  direction  of  any  officer  thereof,  against  any 
national  banking  association,  and  cases  for  winding  up  the 
affairs  of  any  such  bank;  and  of  all  suits  brought  by  any 
banking  association  established  in  the  district  for  which  the 
court  is  held,  under  the  provisions  of  title  'National  Banks,' 
Revised  Statutes,  to  enjoin  the  Comptroller  of  the  Currency, 
or  any  receiver  acting  under  his  direction,  as  provided  by  said 
title.  And  all  national  banking  associations  established  under 
the  laws  of  the  United  States  shall,  for  the  purposes  of  «11 
other  actions  by  or  against  them,  real,  personal,  or  mixed,  and 
all  suits  in  equity,  be  deemed  citizens  of  the  states  in  which 
they  are  respectively  located."  (Quoted  above  in  full  §  94.) 

The  latter  part  of  this  section  places  national  banks  on  the  same 
footing  as  individuals  of  other  corporations  with  respect  to  the 
right  to  sue  and  be  sued  in  the  federal  courts.  There  must  be 
either  diversity  of  citizenship,  or  a  federal  question  otherwise  in- 
volved, to  permit  suits  by  or  against  national  banks  under  this 
provision.20 

20  American  National  Bank  v.  Tappan,  174  Fed.  431;  State  Nat.  Bank  v 
Eureka  Springs  Water  Co.,  174  Fed.  827;  Continental  Nat.  Bank  v.  Buford, 
191  U.  S.  123,  48  L.  Ed.  119,  24  Sup.  Ct.  54. 


71  FEDERAL  QUESTION'S.  Ch.  6,  §§  124-125 

§  124.     Arising  Under  the  Constitution.     Questions  too  numer- 
ous to  discuss  in  this  work  arise  under  the  federal  constitution. 

Art.  1,  §  10,  U.  S.  Const.  "No  state  shall  .  .  .  pass  any 
.  .  .  law  impairing  the  obligation  of  contracts.  ..."  (11 
U.  S.  Comp.  Stats.  1916,  p.  13,549.) 

Art.  4,  §  1,  U.  S.  Const.  "Full  faith  and  credit  shall  be 
given  in  each  state  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  state.  ..."  (11  U.  S.  Comp.  Stats.  1916. 
p.  14,121.) 

.  Art.  4,  §2,  cl.  1,  U.  S.  Const.  "The  citizens  of  each  state 
shall  be  entitled  to  all  privileges  and  immunities  of  citizens 
in  the  several  states."  (11  U.  S.  Comp.  Stats.  1916,  p.  14,208.) 

14th  Amendment,  pt.  §  1,  U.  8.  Const.  "...  no  state  shnll 
make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States ;  nor  shall  any 
state  deprive  any  person  of  life,  liberty,  or  property  without 
due  process  of  law;  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws."  (11  U.  S.  Comp. 
Stats.  1916,  p.  14,441.) 

15th  Amendment,  §  1,  U.  8.  Const.  "The  right  of  citizens 
of  the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States  or  by  any  state  on  account  of  race,  color, 
or  previous  condition  of  servitude."  (11  U.  S.  Comp.  Stats. 
1916,  p.  14,977.) 

§  125.    As  a  Ground  of  Original  Jurisdiction. 

Art.  3,§1,  cl.  1,  U.  8.  Const.  "The  judicial  power  of  the 
United  States,  shall  be  vested  in  one  Supreme  Court,  and  in 
such  inferior  court  as  Congress  may  from  time  to  time  ordain 
and  establish.  ..."  (11  U.  S.  Comp.  Stats.  1916,  p.  13,906.) 

Art.  3,  §5,  cl.  1,  U.  S.  Const.  "The  judicial  powers  ?hall 
extend  to  all  cases  in  law  and  equity,  arising  under  this  Con- 
stitution, the  laws  of  the  United  States,  and  treaties  made,  or 
which  shall  be  made,  under  their  authority;  ..."  (11  U.  S. 
Comp.  Stats.  1916,  p.  14,015.) 

Under  the  foregoing  provisions  of  the  United  States  constitu- 
tion, Congress  establishes  the  United  States  district  courts  as  the 


§  126,  Ch.  6  MANUAL  OF  FEDERAL  PROCEDURE.  72 

courts    of    original    jurisdiction    with    certain    limitations    as    to 
grounds  of  jurisdiction  and  as  to  the  amount  in  controversy.     One 
of  those  grounds  of  jurisdiction  is  the  existence  of  a  federal 
question. 

Part  §  24,  Jud.  Code.  "The  district  courts  have  original 
jurisdiction  as  follows: 

First.  "...  where  the  matter  in  controversy  exceeds, 
exclusive  of  interest  and  costs,  the  sum  or  value  of  $3,000,  and 
(a)  arises  under  the  Constitution  or  laws  of  the  United  States, 
or  treaties  made,  or  which  shall  be  made,  under  their  author- 
ity, .  .  .  Provided,  however,  That  the  foregoing  provision  as 
to  the  sum  or  value  of  the  matter  in  controversy  shall  not  be 
construed  to  apply  to  any  of  the  cases  mentioned  in  the  suc- 
ceeding paragraphs  of  this  section.  ..."  (Quoted  above  in 
full,  §  94.) 

§  126.  As  a  Ground  for  Removal.  Under  the  constitutional 
provision  quoted  in  the  preceding  section,  Congress  has  power  to 
provide  for  the  removal  of  suits  from  state  courts  to  the  federal 
courts  when  such  courts  have  original  or  appellate  jurisdiction  in 
such  suits.21 

The  jurisdiction  on  removal  depends  upon  the  original  jurisdic- 
tion in  the  district  court,  and  therefore  separate  consideration  is 
unnecessary,  except  in  so  far  as  the  general  subject  of  removal  is 
treated  in  chapter  9,  entitled,  "Removal  of  Causes — Jurisdiction 
and  Procedure." 

It  should  be  noted,  however,  that  under  the  last  part  of  §  28,  Jud. 
Code,  actions  based  on  federal  "employers'  liability  law"  are  not 
removable,  although  the  district  courts  have  original  jurisdiction 
concurrent  with  that  of  the  state  courts  in  that  kind  of  action. 

Part  §  28,  Jud.  Code  22  (Re-enacting  25  Stats.  434).  "Any 
suit  of  a  civil  nature,  at  law  or  in  equity,  arising  under  the 

21  Mayor  etc.  of  Nashville  v.  Cooper,  6  Wall.  (U.  S.)  247,  18  L.  Ed.  851. 

22  Foulk  v.  Gray,  120  Fed.  156;  Smith  v.  Lyon,  133  U.  S.  315,  33  L.  Ed. 
635,  10  Sup.  Ct.  303;  In  re  Pennsylvania  Co.,  137  U.  S.  457,  34  L.  Ed.  741, 
11   Sup.   Ct.   143;   Hanrick   v.   Hanrick,   153   U.   S.   192,   38   L.   Ed.   685,   14 
Sup.  Ct.  835;  In  re  Cilley,  58  Fed.  977;   Gumbel  v.  Pitkin,  124  U.  S.  131, 
31  L.  Ed.  374,  8  Sup.  Ct.  379. 


73  FEDERAL  QUESTIONS.  Ch.  6,  §  127 

Constitution  or  laws  of  the  United  States,  or  treaties  made, 
or  which  shall  be  made,  under  their  authority,  of  which  the 
district  courts  of  the  United  States  were  given  original  juris- 
diction by  this  title,  which  may  now  be  pending  or  which  may 
hereafter  be  brought,  in  any  state  court,  may  be  removed  by 
the  defendant  or  defendants  therein  to  the  district  court  of 
the  United  States  for  the  proper  district.  ..."  (See  §  204, 
post.) 

Added  part  §  28,  Jud.  Code,  by  Amendment  Act  January 
20,  1914,  c.  11.  "And  provided  further,  That  no  suit  brought 
in  any  State  court  of  competent  jurisdiction  against  a  rail- 
road company,  or  other  corporation,  or  person,  engaged  in 
and  carrying  on  the  business  of  a  common  carrier,  to  recover 
damages  for  delay,  loss  of,  or  injury  to  property  received  for 
transportation  by  such  common  carrier  under  section  twenty 
of  the  Act  to  regulate  commerce,  approved  February  fourth, 
eighteen  hundred  and  eighty-seven,  as  amended  June  twenty- 
ninth,  nineteen  hundred  and  six,  April  thirteenth,  nineteen 
hundred  and  eight,  February  twenty-fifth,  nineteen  hundred 
and  nine,  and  June  eighteenth,  nineteen  hundred  and  ten, 
shall  be  removed  to  any  court  of  the  United  States  where  the 
matter  in  controversy  does  not  exceed,  exclusive  of  interest 
and  costs,  the  sum  or  value  of  $3,000." 

§  127.  Citizenship  not  Material  in  Suits  Involving-  a  Federal 
Question  Except  When  Affecting-  Venue.  The  existence  of  a 
federal  question  is  sufficient  to  sustain  jurisdiction  of  the  federal 
court  independent  of  citizenship,  provided  the  requisite  amount  or 
value  is  involved  and  the  venue  properly  laid. 

Suits  at  law  or  in  equity,  Western  Union  Teleg.  Co.  v.  Louisville  &  N.  R. 
Co.,  201  Fed.  932;  In  re  Silvies  River,  199  Fed.  495 

Constitution,  laws,  or  treaties,  Anaconda  Copper  Mining  Co.  v.  Butte- 
Balaklava  Copper  Co.,  200  Fed.  808. 

As  to  nonresidents,  see  Wind  River  Lumber  Co.  v.  Frankfort  Marine 
Accident  &  Plate  Glass  Ins.  Co.,  196  Fed.  340,  116  C.  C.  A.  160. 

As  to  separable  controversy,  In  re  Silvies  River,  199  Fed.  495. 

Diverse  citizenship,  Anaconda  Copper  Mining  Co.  v.  Butte-Balaklava  Cop- 
per Co.,  200  Fed.  808. 

Remanding,  Rice  v.  Boston  &  M.  R.  R.,  203  Fed.  580. 


§  128,  Ch.  6  MANUAL  OP  FEDERAL  PROCEDURE.  74 

Citizens  of  the  same  state  may  sue  each  other  in  the  federal 
courts  if  a  federal  question  is  involved.23 

Equity  Rule  25  requires  the  citizenship  and  residence  of  each 
party  to  be  set  out  in  the  bill.  In  suits  based  on  a  federal  ques- 
tion the  citizenship  and  residence  of  the  parties  is  immaterial  ex- 
cept in  transitory  actions  where  the  residence  of  the  defendant 
fixes  the  venue  of  the  action  under  §  51,  Jud.  Code. 

The  requirements  of  the  rule  as  to  citizenship  and  residence  in 
suits  based  on  a  federal  question  are  chiefly  for  the  sake  of  uni- 
formity and  to  identify  the  parties.  In  such  suits  of  a  local 
nature,  citizenship  and  residence  of  any  of  the  parties  are  other- 
wise immaterial. 

If  the  basis  of  the  federal  court's  jurisdiction  is  diverse  citi- 
zenship as  well  as  a  federal  question,  necessarily  a  proper  showing 
of  citizenship  is  essential. 

§  128.  Amount  Required  to  be  in  Controversy.  (See  chapter 
8,  post.)  In  that  part  of  §  24,  Jud.  Code,  quoted  in  §  125  above, 
it  will  be  noted  that,  in  cases  based  on  a  federal  question,  the  mat- 
ter in  controversy,  exclusive  of  interest  and  costs,  must  exceed  the 
sum  or  value  of  $3,000,  except  in  certain  cases  arising  under  fed- 
eral laws  enumerated  in  subdivisions  second  to  twenty-five  of  that 
section,  or  if  brought  by  the  United  States,  or  its  officers. 

To  make  diverse  citizenship  the  ground  of  jurisdiction,  the 
amount  in  controversy  must  always  exceed  $3,000,  exclusive  of 
interest  and  costs. 

Where  less  than  such  amount  is  involved  diverse  citizenship  is 
not  material;  there  must  be  a  federal  question  on  which  to  base 
jurisdiction. 

As  the  jurisdiction  on  removal  depends  on  the  original  juris- 
diction conferred  on  the  district  court,  the  amount  required  to  be 

23  San  Joaquin  etc.  River  Canal  Co.  v.  Stanislaus  Cdunty,  90  Fed.  516, 
520;  Lund  v.  Chicago  etc.  E.  Co.,  78  Fed.  385;  Jewett  v.  Whitcomb,  69  Fed. 
417;  United  States  Express  Co.  v.  Allen,  39  Fed.  712;  Ames  v.  Kansas,  111 
U.  S.  449,  28  L.  Ed.  482,  4  Sup.  Ct.  437;  Owings  v.  Norwood,  5  Cranch 
(U.  S.),  344,  3  L.  Ed.  120;  Fatten  v.  Brady,  184  II.  S.  611,  46  L.  Ed.  715, 
22  Sup.  Ct.  493. 


75  FEDERAL  QUESTIONS.  Ch.  6,  §§  129-130 

in  controversy  on  removal  is  the  same  as  that  necessary  to  sustain 
the  case  if  originally  brought  in  the  federal  court. 

§  129.  Question  must  Appear  on  the  Face  of  the  Bill  in  the 
Federal  Court.  To  entitle  a  plaintiff  to  bring  a  suit  originally 
in  the  United  States  district  court,  the  federal  question  must 
appear  on  the  face  of  his  bill  as  a  part  of  his  cause  of  action.24  It 
must  be  real,  and  not  colorable  merely.25  It  must  be  essential  to 
his  cause  of  action,  and  not  merely  in  anticipation  of  a  defense 
based  on  that  ground.26 

§  130.  How  Question  must  Appear  in  a  State  Court  to  be  Re- 
moved to  Federal  Court.  To  entitle  a  defendant  to  remove  a 
case  from  the  state  court  to  the  United  States  district  court,  the 
federal  question  must  appear  on  the  face  of  the  initial  pleading  in 
the  state  court.  The  defendant  cannot,  in  his  petition  for  re- 
moval, set  up  the  facts  supplementing  plaintiff's  pleading  so  as 
to  show  a  federal  question.27 

The  defendant,  however,  is  not  precluded  in  such  a  case  from 
obtaining  the  determination  of  a  federal  court  as  to  a  federal 
question  involved  in  the  suit,  for  if  the  plaintiff's  pleading  does 
not  show  such  question,  the  defendant  may,  nevertheless,  set  up 
the  federal  question  in  his  own  pleading,  and  thus  preserve  the 
right  of  review  by  the  supreme  court  of  the  United  States  on 
writ  of  error.  This  subject  is  treated  more  in  detail  in  chapter 
74,  entitled  "Writ  of  Error  to  State  Court  of  Last  Resort." 

24  Citj  B.  Co.  v.  Citizens'  Street  B.  Co.,  166  U.  S.  557,  41  L.  Ed.  1114, 
17  Sup.  Ct.  653;  St.  Paul  M.  &  M.  B.  Co.  v.  St.  Paul  &  N.  P.  B.  Co.,  68 
Fed.  2,  15  C.  C.  A.  167;  New  Orleans  v.  New  Orleans  Water  Works,  142 
U.  S.  79,  35  L.  Ed.  943,  12  Sup.  Ct.  142;  Hamblin  v.  Western  Land  Co.,  147 
U.  S.  532,  37  L.  Ed.  267,  13  Sup.  Ct.  353;  St.  Louis  etc.  B.  Co.  v.  State  of 
Missouri,  156  U.  S.  478,  39  L.  Ed.  502,  15  Sup.  Ct.  443. 

25,  Tennessee  v.  Union  &  Planters'  Bank,  152  U.  S.  454,  38  L.  Ed.  511, 
14  Sup.  Ct.  654. 

20  Florida  Central  B.  Co.  v.  Bell,  176  U.  S.  321,  44  L.  Ed.  4S6,  20  Sup.  Ct. 
399. 

27  Tennessee  v.  Union  &  Planters'  Bank,  152  U.  S.  454,  38  L.  Ed.  511,  14 
Sup.  Ct.  654;  Chappell  v.  Waterworth,  155  F.  S.  102,  39  L.  Ed.  85,  15  Sup. 
Ct.  34;  Wlalker  v.  Collins,  50  Fed.  737,  1  C.  C.  A.  642,  59  Fed.  70,  8  C.  C.  A. 
1,  reversed  in  Walker  v.  Collins,  167  U.  S.  58,  42  L.  Ed.  76,  17  Sup.  Ct. 
738;  Mayo  v.  Dockery,  108  Fed.  897. 


§  131,  Ch.  6  MANUAL  OP  FEDERAL  PROCEDURE.  76 

§  131.  Plea  of  Res  Adjudicata  as  Raising*  a  Federal  Question. 
"Where  a  state  court  refuses  to  give  effect  to  the  judgment  of  a 
court  of  the  United  States  rendered  upon  the  point  in  dispute,  and 
with  jurisdiction  of  the  case  and  the  parties,  a  question  is  un- 
doubtedly raised  which,  under  the  act  of  1867  (now  §  237,  Jud. 
Code),  may  be  brought  to  this  court  for  revision.  The  case 
would  be  one  in  which  a  title  or  right  is  claimed  under  an  author- 
ity exercised  under  the  United  States,  and  the  decision  is  against 
the  title  or  right  so  set  up.  It  would  thus  be  a  case  arising  under 
the  laws  of  the  United  States,  establishing  the  circuit  court  (now 
district  court),  and  vesting  it  with  jurisdiction;  and  hence  it 
would  be  within  the  judicial  power  of  the  United  States,  as  de- 
fined by  the  constitution;  and  it  is  clearly  within  the  chart  of 
appellate  power  given  to  this  court,  over  cases  arising  in  and 
decided  by  the  state  courts. 

"The  refusal  by  the  courts  of  one  state  to  give  effect  to  the  de- 
cisions of  the  courts  of  another  state  is  an  infringement  of  a  dif- 
ferent article  of  the  constitution,  to  wit,  the  first  section  of  article 
four;  and  the  right  to  bring  such  a  case  before  us  by  writ  of 
error  under  the  twenty-fifth  section  of  the  Judiciary  Act,  or  the 
act  of  1867  (now  §  237,  Jud.  Code),  is  based  on  the  refusal  of 
the  state  court  to  give  validity  and  effect  to  the  right  claimed 
under  that  article  and  section. 

• 

"In  either  case,  therefore,  whether  the  validity  or  due  effect 
of  a  judgment  of  the  state  court,  or  that  of  a  judgment  of  a 
United  States  court,  is  disallowed  by  a  state  court,  the  constitu- 
tion and  laws  furnish  redress  by  a  final  appeal  to  this  court."28 

28  Dupasseur  v.  Eochereau,  68  U.  S.  134,  135;  Des  Moines  Nav.  &  E.  Co. 
v.  Iowa  Homestead  Co.,  123  U.  S.  555,  556,  31  L.  Ed.  202,  8  Sup.  Ct.  217; 
National  Foundry  &  Pipe  Works  v.  Oconto  Water  Supply  Co.,  183  U.  S. 
233,  234,  46  L.  Ed.  157,  22  Sup.  Ct.  Ill;  Pittsburg  etc.  E.  Co.  v.  Long 
Island  Loan  &  Trust  Co.,  172  U.  S.  507,  43  L.  Ed.  528,  19  Sup.  Ct.  238; 
Phoenix  Fire  etc.  Ins.  Co.  v.  Tennessee,  161  U.  S.  185,  40  L.  Ed.  66(5,  16 
Sup.  Ct.  471;  Mutual  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  311,  63  L.  R.  A. 
33,  47  L.  Ed.  480,  23  Sup.  Ct.  375;  Embry  v.  Palmer,  107  U.  S.  8,  9,  27 
L.  Ed.  346,  2  Sup.  Ct.  25;  Crescent  City  Livestock  Co.  v.  Butchers'  Union 
Slaughter-house,  120  U.  S.  141,  30  L.  Ed.  614,  7  Sup.  Ct.  472. 


77  FEDERAL  QUESTIONS.  Ch.  6,  §  132 

§  132.  Raising1  the  Issue  as  to  Federal  Question.  The  want  of 
a  federal  question,  being  a  matter  of  jurisdiction,  may  be  raised 
under  Equity  Rule  29,  either  by  a  motion  to  dismiss  or  in  the 
answer  and  separately  heard,  and  in  an  action  at  law  by  the 
appropriate  defensive  pleading  provided  for  raising  jurisdictional 
questions  in  the  state  court, — generally  by  demurrer  if  the  defect 
appears  on  the  face  of  the  complaint,  or  by  plea  or  answer  if  it 
does  not  so  appear.  In  case  of  removal  the  objection  would  be 
made  in  a  motion  to  remand.  In  the  event  that  a  federal  ques- 
tion is  properly  pleaded,  but  is  fraudulently  made  for  the  pur- 
pose of  giving  jurisdiction  when  no  actual  federal  question  is 
involved  that  should  be  set  up  in  the  answer  under  Equity  Rule  29 
in  some  such  form  as  follows : 

Defendant  further  answering  alleges  that  this  suit  does  not  really  and 
substantially  involve  a  controversy  within  the  jurisdiction  of  this  court  in 
that  this  suit  is  wholly  based  on  the  alleged  existence  of  a  federal  question; 
that  the  allegations  .in  plaintiff's  complaint  that  this  suit  is  dependent 
[here  state  allegations  mentioned  in  complaint  as  ground  of  federal  juris- 
diction], are  not  made  truly  and  in  good  faith  but  are  stated  with  a  false 
and  fraudulent  purpose  of  imposing  upon  the  jurisdiction  of  this  court  and 
are  therefore  fictitious  and  fraudulent. 

Wherefore  defendant  prays  that  the  suit  be  dismissed  [or  remanded] 
with  costs. 


§  140,  Ch.  7  KANUAL  OF  FEDERAL  PROCEDURE.  78 


CHAPTER  7. 

DIVERSE  CITIZENSHIP. 

SEC. 

140.  In  General. 

141.  What  is  Citizenship? 

142.  Territorial  and  District  of  Columbia  Citizens  are  not  Included. 

143.  States  and  Territories  are  not  Citizens. 

144.  Corporations. 

145.  Joint  Stock  Companies. 

146.  Partnerships. 

147.  National  Banks. 

148.  Married  Women. 

149.  Personal  Representatives. 

150.  Trustees. 

151.  Guardians. 

152.  Aliens. 

153.  Indians. 

154.  Term.  "Citizen"  Collective. 

155.  Change  of  Domicile  After  Suit  Commenced. 

156.  Change  of  Citizenship  or  Transfer  of  Subject  Matter  to  Give  Juris- 

diction. 

157.  Shifting  Parties  to  Create  Diversity. 

158.  Venue  as  Affecting  Jurisdiction  Based  on  Diverse  Citizenship. 

159.  Issue  of  Citizenship — How  Raised. 

160.  When  Want  of  Diversity  Appears  on  the  Trial. 

161.  Amendment  to  Show  Diversity. 

§  140.    In  General. 

Part  §  24,  Jud.  Code.  "The  district  courts  shall  have 
original  jurisdiction  as  follows : — 

"First.  Of  all  suits  of  a  civil  nature,  at  common  law  or 
in  equity,  .  .  .  where  the  matter  in  controversy  exceeds,  ex- 
clusive of  interest  and  costs,  the  sum  "or  value  of  three  thou- 
sand dollars  and  ...  (b)  is  between  citizens  of  different 
states,  or  (c)  is  between  citizens  of  a  state  and  foreign  states, 
citizens  or  subjects.  ..." 

Part  §  51,  Jud.  Code.  "...  but  where  the  jurisdiction  is 
founded  only  on  the  fact  that  the  action  is  between  citizens 
of  different  states,  suit  shall  be  brought  only  in  the  district 


79  DIVERSE  CITIZENSHIP.  Ch.  7,  §  141 

of  the  residence  of  either  the  plaintiff    or  the  defendant." 
(supra,  §  61.) 

It  will  be  seen  from  the  above  quotations  that  in  suits  based  on 
diversity  of  citizenship  that  (1)  the  matter  in  controversy  must 
exceed,  exclusive  of  interest  and  costs,  the  sum  or  value  of  three 
thousand  dollars;  (2)  that  the  controversy  must  be  between  citizens 
of  different  states  or  between  citizens  of  a  state  and  foreign  states, 
citizens,  or  subjects;  and  (3)  that,  where  the  fact  that  the  action 
is  between  citizens  of  different  states  is  the  sole  ground  of  juris- 
diction, the  action  should  be  brought  in  the  district  of  the  residence 
of  either  the  plaintiff  or  the  defendant. 

The  existence  of  a  federal  question  in  these  cases  is  immaterial 
except  as  bearing  on  the  question  of  venue,  which  in  actions  not 
local  should  be  in  the  district  of  the  residence  of  "defendant  where 
both  grounds  of  jurisdiction  exist. 

Where  there  is  a  federal  question  of  such  character  that  the 
amount  in  controversy  is  not  material  and  the  suit  involves  less 
than  three  thousand  dollars,  then  the  fact  that  there  is  a  diversity 
of  citizenship  is  immaterial  because  the  amount  in  controversy 
will  not  support  diversity  of  citizenship  as  a  ground  of  federal 
jurisdiction. 

"Where  diversity  of  citizenship  is  a  sole  ground  of  jurisdiction, 
the  existence  of  a  proper  diversity  and  a  proper  amount  in  con- 
troversy are  jurisdictional,  and  cannot  be  waived.  The  matter  of 
venue  is  not  jurisdictional  in  the  same  sense,  but  may  defeat  the 
action  if  timely  objection  be  made  by  the  opposing  party. 

§  141.  What  is  Citizenship?  Citizenship  is  residence  within  a 
particular  state  with  a  bona  fide  intention  that  such  residence  shall 
be  permanent.  The  residence  and  intention  together  constitute 
what  is  known  as  domicile.1  Accordingly  the  mere  averment  of 
residence,  which  may  be  transient  or  with  the  expectation  of  not 

l  Butler  v.  Farnsworth,  4  Wash.  101,  4  Fed.  Gas.  No.  2240;  Morris  v. 
Gilmor,  129  U.  S.  315,  32  L.  Ed.  690.  9  Snp.  Ct.  289;  Mitchell  v.  United 
States,  21  Wall.  (U.  S.)  350,  22  L.  Ed.  58 1 ;  Marks  v.  Marks,  75  Fed.  324; 
Doyle  v.  Clark,  1  Flipp.  536,  7  Fed.  Gas.  No.  4053. 


§  142,  Ch.  7  MANUAL  OF  FEDERAL  PROCEDURE.  80 

remaining,  is  not  the  equivalent  of  the  averment  of  citizenship  for 
the  purpose  of  supporting  jurisdiction  in  the  federal  court.2 

This  ruling  has  been  held  to  be  unaffected  by  the  definition  of 
citizenship  as  contained  in  the  fourteenth  amendment  of  the  con- 
stitution of  the  United  States,  wherein  it  is  declared  that  ' '  all  per- 
sons born  or  naturalized  in  the  United  States  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
state  wherein  they  reside.3 

§  142.  Territorial  and  District  of  Columbia  Citizens  are  not 
Included.  The  citizenship  must  be  of  that  kind  that  identifies 
itself  with  a  particular  state.  To  be  a  citizen  of  the  United  States, 
and  not  of  some  state,  is  not  enough.4  Territorial  and  District  of 
Columbia  citizens  are  not  citizens  of  a  state,  so  as  to  base  federal 
jurisdiction  on  the  ground  of  diverse  citizenship.5  Thus  a  citizen 
and  resident  of  Indian  territory  against  a  citizen  of  a  state6  and 
an  action  between  state  citizens  and  citizens  of  Porto  Rico  do  not 
present  a  diversity  of  citizenship.7 

On  the  ground  of  diverse  citizenship  the  citizen  of  a  territory 
cannot  sue  a  citizen  of  a  state  in  the  federal  courts  and  vice  versa,6 
nor  can  a  citizen  of  the  District  of  Columbia  sue  a  citizen  of  a 
state  in  the  federal  courts.9 

2  Home  v.  George  H.  Hammond  Co.,  155  U.  S.  393,  39  L.  Ed.  197,  15 
Sup.  Ct.  167;  Wolfe  r.  Hartford  Life  etc.  Ins.  Co.,  145  U.  S.  389,  37  L.  Ed. 
493,  13  Sup.  Ct.  602;  Menard  v.  Goggan,  121  U.   S.  253,  30  L.  Ed.  914,  7 
Sup.   Ct.   873;    Everhart   v.   Huntsville  Female   College,   120   U.   S.   223,   30 
L.  Ed.  623,  7   Sup.  Ct.  555;  Grace  v.   American  Cent.  Ins.   Co.,   109   U.   S. 
278,  27  L.  Ed.  932,  3  Sup.   Ct.  207;   Brown  v.  Keene,  8  Pet.   (U.  S.)   112, 
8  L.  Ed.  885;  Turner  v.  Bank  of  North  America,  4  Dall.  (U.  S.)  8,  1  L.  Ed. 
718. 

3  Marks  v.  Marks,  75  Fed.  324;  Shaw  v.  Quincy  Min.  Co.,  145  U.  S.  444, 
36  L.  Ed.  768,  12  Sup.  Ct.  935;  Anderson  v.  Watt,  138  U.  S.  694,  34  L.  Ed. 
1078,  11  Sup.  Ct.  449. 

4  Prentiss  v.  Brennan,  2  Blatchf.  162,  19  Fed.  Gas.  No.  11,385. 

5  Johnson  v.  Bunker  Hill  etc.  Co.,  46  Fed.  417;  Hooe  v.  Jamieson,  166 
U.  S.  395,  41  L.  Ed,  1049,  17  Sup.  Ct.  596;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  943. 

6  Kansas  City  S.  R.  Co.  v.  McGinty,  76  Ark.  356,  88  S.  W.  1001. 

7  Healy  v.  McCormick,  157  Fed.  318. 

8  Johnson  v.  Bunker  Hill  etc.  Co.,  46  Fed.  417. 

»  Seddon  v.  Virginia  etc.  Co.,  36  Fed.  8,  1  L.  R.  A.  108;  Hepburn  v. 
Ellzey,  2  Cranch  (U.  S.),  445,  2  L.  Ed.  332;  New  Orleans  v.  Winter,  1 
Wheat.  (U.  S.)  91,  4  L.  Ed.  44. 


81  DIVERSE  CITIZENSHIP.  Ch.  7,  §§  143-144 

§  143.  States  and  Territories  are  not  Citizens.  "A  state  is  not 
a  citizen  of  any  state,  and,  under  the  judiciary  acts  of  the  United 
States,  it  is  firmly  settled  that  a  suit  between  a  state  and  a  citizen 
or  corporation  of  another  state  is  not  between  citizens  of  different 
states;  and  that  in  such  cases  the  circuit  courts  (now  district 
courts)  of  the  United  States  have  no  jurisdiction  of  it  unless  it 
arises  under  the  constitution,  laws,  or  treaties  of  the  United 
States."10 

The  District  of  Columbia  and  the  territories  have  been  held  not 
citizens  so  as  to  create  diversity  of  citizenship.11 

§  144.  Corporations.  Corporations,  though  artificial  persons, 
are  treated  for  the  purpose  of  determining  diverse  citizenship  as 
citizens  of  the  state  under  which  they  are  created.12 

A  corporation  does  not  become  a  citizen  of  another  state  than  that 
of  its  incorporation  by  transacting  business  and  having  an  office 
therein,  or  agreeing  as  a  condition  of  being  permitted  to  transact 
business  in  such  other  state  that  it  may  be  sued  therein.18 

Where  a  corporation  is  incorporated  in  two  states,  it  is  a  citizen 
of  both  states  for  jurisdictional  purposes.14 

Corporations  of  different  states  consolidated  in  each  of  the  states 
is  a  citizen  of  each.15 

10  State  v.  Indiana,  etc.  r.  Alloghany  Oil  Co.,  85  Fed.   870.     Sec,  also, 
Ames  v.  Kansas,  111  U.  S.  449,  28  L.  Ed.  4S2,  4  Sup.  Ct.  437;  Germania  Ins. 
Co.  v.  Wisconsin,  119  U.  S.  473,  30  L.  Ed.  461,  7  Sup.  Ct.  260;  Postal  Tel. 
Cable  Co.  v.  Alabama,  155  U.  S.  482,  39  L.  Ed.  231,  15  Sup.  Ct.  192;  State 
v.  Tolleston  Club,  53  Fed.  18;  Ayer  etc.  Tie  Co.  v.  Kentucky,  202  U.  S. 
409,  6  Ann.  Cas.  205,  50  L.  Ed.  1082,  26  Sup.  Ct.  679;   O'Conor  v.  Texas, 
202  U.  S.  501,  50  L.  Ed.  1120,  26  Sup.  Ct.  720;  Southern  R.  Co.  v.  St:ih>.  I'M 
Ind.  613,  75  N.  E.  272;  Darnell  v.  State,   174  Ind.   143,  90  N.  E.  769;   Ex 
parte  Nebraska,  209  U.  S.  436,  52  L.  Ed.  876,  28  Sup.  Ct.  581. 

11  Johnson  v.  Bunker  Hill  etc.  Co.,  46  Fed.  417;  Maxwell  v.  Federal  Gold 
&  Copper  Co.,  155  Fed.  110,  83  C.  C.  A.  570. 

12  Barrow  Steamship  Co.  v.  Kane,  170  U.  S.  100,  42  L.  Ed.  964,  18  Sup. 
Ct.  526. 

13  Baltimore  etc.  R.  Co.  v.  Koontz,  104  U.  S.  5,  26  L.  Ed.  643;  Philadel- 
phia etc.  R.  Co.  v.  Quigley,  21  How.  (U.  S.)  202,  16  L.  Ed.  73. 

14  Memphis  etc.  R.  Co.  v.  Alabama,  107  U.  S.  581,  27  I*  Ed.  518,  2  Sup. 
Ct.  432. 

15  Baldwin  v.  Chicago  etc.  R.  Co.,  86  Fed.  187.     • 

Manual — 6 


§  144,  Ch.  7  MANUAL  OP  FEDERAL  PROCEDURE.  82 

A  municipal  corporation  is  a  citizen  of  the  state  creating  it  the 
same  as  a  private  corporation.16 

Because  a  corporation  is  a  citizen  of  the  state  wherein  it  is  in- 
corporated, the  allegation  of  citizenship  may  read: 

" Company,   a  corporation,   organized    and    existing 

under  the  laws  of  the  state  of ,  with  its  principal  place 

of  business  in  the  county  of ,  said  state." 

It  has  been  held  that  the  following  statements  were  sufficient 
on  which  to  base  diverse  citizenship: 

"  Foreign  corporation  formed  under  and  created  by  the 
laws  of  the  state  of  New  York."  17 

"A  corporation  organized  and  domiciled  in  the  state  of 
New  York."18 

"A  body  corporate  by  an  act  of  the  general  assembly  of 
Maryland."19 

"A  body  corporate  in  the  state  of  Maryland  incorporated 
by  a  law  of  the  general  assembly  of  Maryland. ' ' 20 

"The  Covington  Drawbridge  Company  of  Covington  is  a 
corporation  of  the  state  of  Indiana. ' ' 21 

"Organized  under  and  pursuant  to  the  laws  of  the  state  of 
New  Jersey."22 

The  following  averments  were  held  insufficient: 

"A  body  politic  in  the  law  of  and  doing  business  in  the 
,     state  of  California."23 

1«  Ysleta  v.  Canada,  87  Fed.  6;  Cowles  v.  Mercer  County.  7  Wall.  (U.  S.) 
121,  19  L.  Ed.  87. 

17  United  States  Express  Co.  v.  Kountze,  8  Wall.  (U.  8.)  342,  19  L.  Ed. 
457. 

18  Ward  v.  Blake  Mfg.  Co.,  56  Fed.  437,  5  C.  C.  A.  538. 

19  Marshall  v.  Baltimore  etc.  E.  Co.,  16  How.  (U.  S.)  314,  14  L.  Ed.  953. 

20  Covington   Draw   Bridge    Co.   v.   Shepherd,    21   How.    (U.   S.)    112,    16 
L.  Ed.  38;   Philadelphia  etc.  B.  Co.  v.  Quigley,  21   How.   (U.   S.)    202,   16 
L.  Ed.  73. 

21  Covington    Draw   Bridge    Co.   v.   Shepherd,    21    How.    (U.   S.)    112,    16 
L.  Ed.  38. 

22  Block  v.  Standard  Distilling  etc.  Co.,  95  Fed.  978. 

23  Pennsylvania  v.  Quicksilver  Cov  10.  Wall.  (U.  S.)  553,  19  L.  Ed.  998. 


83  DIVERSE  CITIZENSHIP.  Ch.  7,  §  145 

"A  corporation  duly  established  by  law  and  having  its  prin- 
cipal place  of  business  at  Boston,  in  the  state  of  Massachu- 
setts."24 

"Doing  business  in  the  state  of  Iowa."28 

A  corporation  organized  under  the  laws  of  a  foreign  country  is 
an  alien.28 

In  Robertson  v.  Scottish  Union  etc.  Ins.  Co.,  68  Fed.  173,  the 
court  held  that  the  allegation  in  a  petition  for  removal  of  a  cause 
to  a  federal  court,  that  the  defendant  is  "a  company  duly  char- 
tered and  incorporated  under  the  laws  of  Great  Britain,"  is  a 
sufficient  statement  of  the  citizenship  of  such  defendant  to  give  the 
federal  court  jurisdiction.  In  Dundee  Mortgage  etc.  Investment 
Co.  v.  School  District,  21  Fed.  151,  held  that  an  allegation  that 
plaintiff  is  a  foreign  corporation  duly  incorporated  under  the 
laws  of  Great  Britain,  in  legal  effect  is  the  same  as  saying  that 
it  is  a  subject  of  Great  Britain,  and  is  sufficient. 

§  145.  Joint  Stock  Companies.  Joint  stock  companies  partake 
both  of  the  nature  of  partnerships  and  of  corporations,  and  ac- 
cordingly there  has  been  a  conflict  of  opinion  as  to  whether  the 
rule  governing  partnerships,  or  the  rule  governing  corporations, 
should  apply  to  these  companies.  It  is  now  held  that  joint  stock 
companies  do  not  come  under  the  rule  governing  corporations,  but 
that  the  citizenship  of  the  company  depends  upon  the  citizenship 
of  the  members.27  An  allegation  that  certain  company  was  "a 
joint  stock  company  organized  under  and  by  virtue  of  a  law  of 
the  state  of  New  York,  and  which  said  company  is  authorized  by 
the  laws  of  the  state  of  New  York  to  maintain  and  bring  suits  in 
the  name  of  its  president,  for  or  on  account  of  any  right  of  action 
accruing  to  said  company,  and  a  citizen  of  the  state  of  New  York, ' ' 

24  New  York  etc.  B.  Co.  v.  Hyde,  56  Fed.  188,  5  C.  C.  A.  461. 

25  Brock    v.   Northwestern    Fuel   Co.,    130    U.    S.   342,   32   L.   Ed.   905,  9 
Sup.  Ct.  552. 

26  Baltimore  etc.  R.  Co.  v.  Koontz,  104  U.  S.  5,  26  L.  Ed.  643;  National 
Steamship  Co.  v.  Tugman,  106  U.  S.  IIS.  27  K  Ed.  87,  1  Sup.  Ct.  58. 

27  Thomas  v.  Board  of  Trustees  of  Ohio  State  University,  195  U.  S.  211. 
49  L.  Ed.  164,  25  Sup.  Ct.  24;  Saunders  v.  Adams  Express  Co.,  136  Fed.  494. 


§§  146-148,  Ch.  7     MANUAL  OP  FEDERAL  PROCEDURE.  84 

was  fatally  defective  in  that  it  did  not  state  that  the  company 
was  a  corporation.28 

§  146.  Partnerships.  A  partnership  is  not  a  legal  entity  so  as 
to  have  a  citizenship  of  itself,  but  federal  jurisdiction  of  suits  by 
or  against  partnerships  and  voluntary  associations  depend  upon 
the  citizenship  of  the  members  composing  them.29 

§  147.    National  Banks. 

Part  subd.  16,  §  24,  Jud.  Code,  "...  and  all  national 
banking  associations  established  under  the  laws  of  the  United 
States  shall,  for  the  purposes  of  all  other  actions  by  or  against 
them,  real,  personal,  or  mixed,  and  all  suits  in  equity,  be 
deemed  citizens  of  the  state  in  which  they  are  respectively 
located. ' ' 

The  above-quoted  provision  makes  jurisdiction  as  to  national 
banks,  except  when  the  United  States  or  a  federal  officer  is  a  party, 
the  same  as  any  other  corporation.30 

§  148.  Married  Women.  The  general  rule  is  that  the  domicile 
of  the  husband  is  the  domicile  of  the  wife.  But  the  rule  does  not 
apply  when  the  wife  is  abandoned.31  When  an  alien  female  mar- 
ries a  citizen,  she  becomes  a  citizen.32 

§  3,  Act  March  2,  1907,  c.  2534.  "That  any  American 
woman  who  marries  a  foreigner  shall  take  the  nationality  of 
her  husband.  At  the  termination  of  the  marital  relation  she 
may  resume  her  American  citizenship,  if  abroad,  by  regis- 
tering as  an  American  citizen  within  one  year  with  a  consul 
of  the  United  States,  or  by  returning  to  reside  in  the  United 

28  Chapman  v.  Barney,  129  U.  S.  679,  32  L.  Ed.  800,  9  Sup.  Ct.  426. 

29  Adams  v.  May,  27  Fed.  908;  Conn  v.  Chicago  etc.  E.  Co.,  48  Fed.  177; 
Sawyer  v.  Switzerland  Marine  Ins.  Co.,  14  Blatchf.  452,  Fed.  Cas.  No.  12,408. 

30  First  Nat.  Bank  v.  Forrest,  40  Fed.  705;  George  v.  Wallace.  135  Fed. 
286,  68  C.  C.  A.  40;  American  Nat.  Bank  v.  Tappan,  174  Fed.  431;  Conti- 
nental Nat.  Bank  v.  Buford,  191  TJ.  S.  123,  48  L.  Ed.  119,  24  Sup.  Ct.  54. 

31  Thompson  v.  Stalmann,  139  Fed.  93;  Watertown  v.  Greaves,  112  Fed. 
183,  56  L.  R.  A.  865,  50  C.  C.  A.  172. 

32  §  1994,  Eev.  Stats.;  2  Fed.  Stats.  Ann.,  2d  ed.,  p.  117;  4  U.  S.  Comp. 
Stats.  1916,  §  1994,  p.  3948. 


85  DIVERSE  CITIZENSHIP.  Ch.  7,  §§  149-150 

States,  or,  if  residing  in  the  United  States  at  the  termination 
of  the  marital  relation,  by  continuing  to  reside  therein."  (34 
Stats.  1228  5  2  Fed.  Stats.  Ann.,  2d  ed.,  p.  123 ;  4  U.  S.  Comp. 
Stats.  1916,  §  3960,  p.  4833.) 

§  4,  Act  March  2,  1907,  c.  2534.  "That  any  foreign  woman 
who  acquires  American  citizenship  by  marriage  to  an  Amer- 
ican shall  be  assumed  to  retain  the  same  after  the  termination 
of  the  marital  relation  if  she  continue  to  reside  in  the  United 
States,  unless  she  makes  formal  renunciation  thereof  before 
a  court  having  jurisdiction  to  naturalize  aliens,  or  if  she  re- 
sides abroad  she  may  retain  her  citizenship  by  registering  as_ 
such  before  a  United  States  consul  within  one  year  after  the 
termination  of  such  marital  relation."  (34  Stats.  1229;  2 
Fed.  Stats.  Ann.,  2d  ed.,  p.  124;  4  U.  S.  Comp.  Stats.  1916, 
§  3961,  p.  4834.) 

§  149.  Personal  Representatives.  "The  test  of  jurisdictional 
authority  is  to  be  found  in  the  citizenship  of  the  parties  who  are 
actually  before  the  court;  and,  if  either  of  such  parties  sue  or  is 
sued  in  a  representative  capacity,  his  own  citizenship,  and  not 
the  citizenship  of  him  whom  he  represents,  is  the  determining 
factor."  In  a  suit  against  the  administrator,  there  must  be  diver- 
sity of  citizenship  between  him  and  the  complainant;  and  the  fact 
that  his  decedent  possessed  the  requisite  citizenship  at  the  time  of 
the  transactions  giving  rise  to  the  suit,  and  at  the  time  of  his 
death,  is  immaterial.33  It  is  not  material  in  what  state  letters 
testamentary  or  of  administration  are  granted.34, 

§  150.  Trustees.  "If  a  trustee,  by  his  citizenship,  is  qualified 
to  sue  in  a  federal  court,  the  citizenship  of  the  beneficiary  under 
the  trust  is  wholly  unimportant.  If  the  trustee  is  disqualified  by 
reason  of  citizenship  in  the  same  state  as  that  of  the  necessary 
defendants,  the  suit  cannot  be  entertained,  even  though  the  bene- 

33  Bangs  v.  Loveridge,  60  Fed.  963;  Dodge  v.  Perkins,  Fed.  Cas.  No.  3954, 
4  Mason,  435;  Susquehanna  etc.  R.  Co.  v.  Blatehford,  11  Wall.  (U.  S.)  172, 
20  L.  Ed.  179. 

34  Brisenden  v.  Chamberlain,  53  Fed.  310;  Hess  v.  Reynolds,  113  U.  S.  76. 
28  L.  Ed.  927,  5  Sup.  Ct.  377. 


§  151,  Ch.  7  MANUAL  OF  FEDERAL  PROCEDURE.  86 

ficiary  might  be  qualified.  The  jurisdiction  is  to  be  determined, 
in  all  such  instances,  by  the  citizenship  of  the  trustee.  Neither 
is  the  rule  changed  by  the  refusal  of  the  trustee  to  act.  His  re- 
fusal may  authorize  .the  beneficiary  to  exhibit  a  bill  against  the 
debtor  to  obtain  a  decree  of  a  foreclosure.  But,  if  the  legal  title 
to  the  property  conveyed  in  trust  be  in  the  trustee,  then  the  court 
cannot  grant  any  relief  until  the  trustee  was  made  a  party  de- 
fendant."35 

But  where  the  trustee  is  a  naked  trustee,  and  his  .sole  duty  is 
to  hold  the  property  until  defeasance,  with  no  power  over  it,  and 
no  right  or  duty  to  foreclose,  the  rule  does  not  apply.36  A  non- 
resident cestui  que  trust  may  sue  in  the  federal  court,  when  the 
trustee  refuses  to  sue,  by  making  the  trustee  a  party  defendant, 
where  he  is  a  resident  of  the  same  state  as  the  other  defendants.37 

§  151.  Guardians.  Where  an  infant  sues  or  defends  by  a 
guardian  or  next  friend,  it  has  been  held  that  the  federal  juris- 
diction depends  on  the  citizenship  of  the  infant.38  The  domicile 
of  the  infant  is  that  of  its  parents;  if  the  father  is  living,  that  of 
the  father;  if  dead,  that  of  the  mother.  Where  the  parents  are 
divorced,  the  domicile  will  be  governed  by  the  domicile -of  the 
parent  to  whom  the  infant  has  been  awarded.39 

It  has  been  held  that  when  the  law  of  the  state  of  the  forum 
gives  the  general  guardian  a  right  to  sue  in  his  own  name  as  such 
guardian,  he  is  to  be  treated  as  the  party  plaintiff  so  far  as  federal 
jurisdiction  is  concerned.40 

35  Shipp  v.  Williams,  62  Fed.  4,  10  C.  C.  A.  247;  Gardner  v.  Brown,  21 
Wall.   (U.  S.)   36,  22  L.  Ed.  527;  McRea  v.  Branch  Bank  of  Alabama,   19 
How.  (U.  S.)  376,  15  L.  Ed.  688;  Knapp  v.  Troy  etc.  R.  Co.,  20  Wall.  (U.  S.) 
117,  22  L.  Ed.  328;  Watson  v.  Asbury  Park  etc.  R.  Co.,  73  Fed.  1. 

36  D.  A.  Tompkins  Co.  v.  Catawba  Mills,  82  Fed.  780. 

37  Einstein  v.  Georgia  So.  &  F.  R.  Co.,  120  Fed.  1009;  Omaha  Hotel  Co. 
v.  Wade,  97  U.  S.  13,  24  L.  Ed.  917;  Reinach  v.  Atlanta  G.  W.  R.  Co.,  58 
Fed.  33,  38. 

38  Woolridge  v.  McKenna,  8  Fed.  650;  In  re  McClean,  26  Fed.  49;   Wil- 
coxsen  v.  Chicago  etc. 'R.  Co.,  116  Fed.  444;  Voss  v.  Neineber,  68  Fed.  947; 
Wiggins  v.  Bethune,  29  Fed.  51. 

39  Marks  v.  Marks,  75  Fed.  325;  Toledo  Traction  Company  v.  Cameron, 
137  Fed.  49,  69  C.  C.  A.  28. 

40  Mexican  C.  R.  Co:  v.  Eckman,  187  U.  S.  429,  47  L.  Ed.  245,  23  Sup.  Ct. 
211. 


87  DIVERSE  CITIZENSHIP.  Ch.  7,  §§  152-153 

§  152.  Aliens.  Aliens  are  citizens  or  subjects  of  foreign 
states,  and  the  district  courts  are  given  jurisdiction,  when  the  con- 
troversy is  between  a  citizen  or  citizens  of  a  state  and  a  citizen  or 
citizens  and  subjects  of  foreign  state.41  An  alien  may  sue  a  citizen 
or  a  citizen  may  sue  an  alien.42 

In  this  class  of  cases  as  in  suits  between  citizens  of  different 
states,  the  citizenship  of  parties  on  one  side  of  the  controversy 
must  be  attached  to  a  particular  state  or  states  with  an  alien  on 
the  other  side.43  The  bare  allegation  that  the  opposing  party  is 
an  alien  is  not  sufficient.  It  must  be  alleged  that  he  is  a  subject 
or  citizen  of  .some  one  foreign  state.44  Federal  courts  have  no 
jurisdiction  of  suits  between  aliens  where  no  federal  question  is 
involved  either  alone  or  by  joining  citizens.45 

A  description  of  plaintiff  as  "a  citizen  of  London,  England," 
is  not  a  sufficient  averment  that  plaintiff  is  a  citizen  of  Great 
Britain.46 

The  declaration  may  be  amended  to  show  that  the  plaintiff  was 
an  alien  when  the  suit  was  commenced,  instead  of  a  citizen  as 
alleged.47 

§  153.  Indians.  Indians  are  neither  citizens  nor  aliens.  An 
Indian  residing  within  the  United  States  is  not  "a  foreign  citizen 
or  subject."48  A  member  of  an  Indian  tribe  maintaining  tribal 
relations  is  not  a  citizen  of  the  United  States,  nor  of  the  state  of 
his  residence,  unless  he  has  been  naturalized  in  some  manner.49 

41  Prentiss  v.  Brennan,  2  Blatchf.  162,  19  Fed.  Gas.  No.  11,385. 

42  Mossman   v.  Higginson,  4   Dall.   (U.   S.)    12,   1   L.  Ed.   720;    Piquignot 
v.  Pennsylvania  R.  Co.,  16  How.  (U.  S.)  104,  14  L.  Ed.  863;  Sherwood  v. 
Newport  News  etc.  Co.,  55  Fed.  1,  5. 

43  Piequet  v.  Swan,  5  Mason,  35,  19  Fed.  Gas.  No.  11,134. 

44  Wilson  v.  City  Bank,  3  Sumn.  422,  30  Fed.  Cas.  No.  17,797. 

45  Johnson  v.  Accident  Ins.  Co.  of  North  America,  35  Fed.  376;  Hodgson 
v.  Bowerbank,  5  Cranch   (U.  S.),  304,  3  L.  Ed.  108;  Rateau  v.  Bernard,  3 
Blatchf.  244,  20  Fed.  Cas.  No.  11,579;  Pooley  v.  Luco,  72  Fed.  561. 

46  Stuart  v.  Easton,  156  U.  S.  46,  39  L.  Ed.  341,  15  Sup.  Ct.  268. 

47  Betzoldt  v.  American  Ins.  Co.,  47  Fed.  705. 

48  Karrahoo  v.  Adams,  1  Dill.  344,  14  Fed.  Cas.  No.  7614. 
4»  Paul  v.  Chilsoquie,  70  Fed.  401, 


§  154:,  Ch.  7  MANUAL  OF  FEDERAL  PROCEDURE.  88 

A  child  deriving  citizenship  through  its  negro  mother,  though  with 
an  Indian  father,  is  a  citizen  for  the  purpose  of  jurisdiction.50 

§154.  Term  "Citizen"  Collective.  The  word  "citizen,"  as 
used  in  the  statute,  is  used  in  a  collective  sense,  and  means  all 
parties  on  one  side  of  a  suit,  considered  as  a  whole,  differ  from  all 
the  parties  on  the  other  side  of  the  suit  in  citizenship.  "While 
the  designation  of  a  party  'plaintiff'  or  'defendant'  was  in  the 
singular  number,  it  was  intended  to  embrace  all  persons  who  were 
on  one  side,  however  numerous,  so  that  distinct  interest  must  be 
represented  by  persons  all  of  whom  were  entitled  to  sue  or  were 
liable  to  be  sued,  in  the  federal  court.51 

The  reason  for  this  is  apparent  when  it  is  remembered  that  the 
original  intent  of  making  diverse  citizenship  a  ground  of  fed- 
eral jurisdiction  was  to  furnish  an  impartial  tribunal  for  the 
determination  of  controversies  between  such  parties.  If  a  citizen 
of  a  state  is  opposed  to  a  citizen  of  the  same  state,  presumably 
justice  would  be  given  in  the  state  court  to  its  own  citizens,  and 
the  joinder  of  nonresidents  on  one  side  or  the  other  would  not 
affect  the  case. 

The  federal  court's  jurisdiction  is  limited,  and  if  it  cannot  take 
jurisdiction  of  a  case  between  citizens  of  the  same  state,  the  mere 
fact  that  there  is  diverse  citizenship  as  to  other  parties  would  not 
confer  jurisdiction.  It  must  appear  that  every  party  on  one  side 
of  the  action  is  a  citizen  of  a  different  state  from  every  party  on 
the  other  side.52  If  two  causes  of  action  are  set  out,  diversity 
must  appear  in  both.53  The-  same  rule  applies  in  suits  between 
citizens  and  aliens.  All  the  necessary  parties  on  one  side  must 

50  Alberty  v.  United  States,  162  U.  S.  499,  40  L.  Ed.  1051,  16  Sup.  Ct. 
864. 

si  Saginaw  Gaslight  Co.  v.  City  of  Saginaw,  28  Fed.  529;  Straw-bridge 
v.  Curtiss,  3  Cranch  (U.  S.),  267,  2  L.  Ed.  435;  Susquehanna  etc.  R.  &  Coal 
Co.  v.  Blatchford,  11  Wall.  (IP.  S.)  172.  20  L.  Ed.  179. 

52  Mexican  C.  R.  Co.  v.  Pinkney,  149' U.  S.  194,  37  L.  Ed.  699.  13  Sup.  Ct. 
859;  Anderson  v.  Bassman,  140  Fed.  10,  11;  Peninsular  Iron  Co.  v.  Stone, 
121  U.  S.  633,  30  L.  Ed.  1020,  7  Sup.  Ct.  1010. 

53  Howe  &  D.  Co.  T.  Haugan,-  140  Fed.  184,  185;  King  v.  Inlander,  133 
Fed.  416. 


89  DIVERSE  CITIZENSHIP.  Ch.  7,  §§  155-156 

be  citizens  of  a  state  and  all  on  the  other  side  must  have  citizen- 
ship otherwise.54 

§  155.  Change  of  Domicile  After  Suit  Commenced.  A  change 
of  citizenship  after  the  suit  is  commenced  will  have  no  effect 
on  the  jurisdiction  of  the  court,  where  the  parties  were  citizens 
of  different  states  at  the  commencement  of  the  suit.55  Nor  will 
an  assignment  of  the  cause  of  action  after  the  suit  is  begun, 
whereby  the  parties  become  citizens  of  the  same  state,  affect  the 
jurisdiction  of  the  court  once  obtained.58 

§  156.  Change  of  Citizenship  or  Transfer  of  Subject  Matter 
to  Give  Jurisdiction.57  If  a  citizen  removes  from  one  state  to 
another  in  order  to  prosecute  suits  in  the  courts  of  the  United 
States,  provided  the  removal  be  real,  the  motive  of  the  act  can- 
not be  inquired  into.58  But  the  change  must  be  bona  fide,  and 
not  merely  ostensible.59  A  person  who,  residing  in  and  transacting 
business  in  St.  Louis,  for  the  purpose  of  acquiring  a  residence  for 
jurisdictional  purposes  crosses  the  river  to  East  St.  Louis,  and 
there  rents  a  room  in  which  he  sleeps  at  night  while  he  continues  to 
transact  his  business  and  also  to  take  his  meals  in  St.  Louis,  does 
not  acquire  a  residence  for  jurisdictional  purposes.60 

Another  mode  of  securing  federal  jurisdiction  is  to  transfer  the 
subject  of  litigation  or  the  cause  of  action,  to  a  nonresident.  The 
test  in  this  case  is  the  same  as  that  applied  in  a  change  of  resi- 
dence, whether  or  not  the  transfer  was  made  in  good  faith.  The 

M  Tracy  v.  Morel,  88  Fed.  801;  Sawyer  v.  Switzerland  Marine  Ins.  Co., 
Fed.  Cas.  No.  12,408,  14'Blatchf.  452;  Ex  parte  Girard,  3  Wall.  Jr.  263,  265, 
Fed.  Cas.  No.  5457. 

55  Pacific  Mut.  Life  Ins.  Co.  v.  Tompkins,  101  Fed.  539,  41  C.  C.  A.  488; 
Conolly  v.  Taylor,  2  Pet.  (U.  S.)  556,  7  L.  Ed.  518;  Anderson  v.  Watts,  138 
U.  S.  694,  34  L.  Ed.  1078,  11  Sup.  Ct.  449;  Morgan  v.  Morgan,  2  Wheat. 
(U.  S.)  297,  4  L.  Ed.  24.     See,  also,  cases  cited  4  Fed.  Stats.  Ann.,  2d  ed., 
p.  949  et  seq. 

56  Anderson  v.  Watts,  138  TJ.  S.  694,  34  L.  Ed.  1078,  11  Sup.  Ct.  449, 
supra;  Hardcnbergh  v.  Ray,  151  U.  S.  112,  38  L.  Ed.  93,  14  Sup.  Ct.  305. 

57  See  §  97  above  as  to  jurisdiction  by  assignment. 

58  Briggs  v.  French,  2  Sumn.  251,  4  Fed.  Cas.  No.  1871.  - 

69  Mitchell  v.  United  States,  21  Wall.   (U.  S.)   352,  22  L.  Ed.  587. 
«o  Kingman  v.  Holthaus,  59  Fed.  305. 


§  157,  Ch.  7  MANUAL  OP  FEDERAL  PROCEDURE.  90 

mere  fact  that  the  subject  matter  of  the  suit  has  been  transferred 
for  the  purpose  of  giving  jurisdiction  to  the  court  will  not  defeat 
jurisdiction,  provided  there  has  been  a  bona  fide  sale  and  transfer, 
by  which  the  transferee  becomes  the  real  owner  and  thereby  the 
party  to  the  suit.61  But  where  it  appears  that  a  conveyance  to 
plaintiff  has  been  made  without  consideration  for  the  sole  purpose 
of  making  a  case  of  diverse  citizenship,  the  case  will  be  dismissed 
on  motion.62  When  all  interest  in  the  subject  matter  is  parted 
with  upon  good  consideration,  then  the  fact  that  the  motive  was 
to  get  federal  jurisdiction  will  not  be  considered.63  But  if  at  any 
time  it  appears  that  the  parties  to  the  suit  have  been  improperly 
or  collusively  made  or  joined,  either  as  plaintiffs  or  defendants, 
for  the  purpose  ofc  creating  a  case  cognizable  or  removable  under 
the  act,  the  circuit  court  will  proceed  no  further,  but  shall  dismiss 
the  suit  or  remand  it  to  the  court  from  which  it  was  removed.64 

§  157.  Shifting'  Parties  to  Create  Diversity.  It  should  appear 
in  the  bill  that  there  is  a  diversity  of  citizenship  to  give  jurisdic- 
tion; prior  to  the  act  of  March  3,  1875,  this  was  sufficient,  and 
their  position  on  the  bill  was  conclusive.65  But  since  1875  the 
rule  is  that  jurisdiction  does  not  lawfully  attach  until  all  neces- 
sary parties  are  made  parties.  It  is  not  in  the  discretion  of  the 
pleader  to  arrange  parties  in  the  suit  so  as  to  confer  jurisdiction. 
They  must  be  arranged  according  to  their  interests  in  the  suit, 
and  the  court,  when  passing  on  the  question  of  jurisdiction,  will 

61  Manhattan  L.  Ins.  Co.  v.  Broughton,  109  U.  S.  125,  27  L.  Ed.  878,  3 
Sup.  Ct.  99;  Collinson  v.  Jackson,  14  Fed.  305,  309,  8  Sawy.  357;  Hawley  v. 
Kepp,  2  Flipp.  177,  11  Fed.  Cas.  No.  6249;  Briggs  v.  French,  2  Sumn.  251,  4 
Fed.  Cas.  No.  1871. 

62  Williams  v.  Nottawa,  104  U.  S.  209,  26  L.  Ed.  719;  Bernards  Tp.  v. 
Stebbins,  109  U.  S.  341,  27  L.  Ed.  956,  3  Sup.  Ct.  252;  Greenwalt  v.  Tucker, 
10  Fed.  884,  3  McCrary,  450;  Maxweld  v.  Levy,  2  Dall.  (U.  S.)  381,  1  L.  Ed. 
424,  4  Dall.  (U.  S.)  330,  11  L.  Ed.  854,  16  Fed.  Cas.  No.  9321. 

63  Norton  v.  European  &  N.  A.  K.  Co.,  32  Fed.  865;  Lake  County  v.  Dud- 
ley, 173  U.  S.  243,  43  L.  Ed.  684,  19  Sup.  Ct.  398;  Irvine  Co.  v.  Bond,  74 
Fed.  849;  Alkire  Grocery  Co.  v.  Eichesin,  91  Fed.  79,  84;  Ashley  v.  Board 
of  Supervisors  of  Presque  Isle  County,  83  Fed.  534,  27  C.  C.  A.  585;  Board 
of  Commissioners  of  Lake  County  v.  Schradsky,  97  Fed.  2,  38  C.  C.  A.  17. 

64  Fountain  v.  Town  of  Angelica,  12  Fed.  8,  20  Blatchf.  448;   Hawes  v. 
Contra  Costa  Water  Co.,  25  Alb.  Law  J.  146  (S.  C.,  11  Fed.  93,  note);  Bar- 
ney v.  Baltimore  City,  6  Wrall.  (U.  S.)   2SO,  18  L.  Ed.  825. 

65  Bland  v.  Fleeman,  69  Fed.   669,   672. 


91  DIVERSE  CITIZENSHIP.  Ch.  7,  §  157 

\ 

do  this.  It  will  look  to  the  real  facts  of  the  ease,  as  developed  by 
the  pleadings,  and  will  disregard  the  artificial  arrangement  of  the 
parties  by  the  pleader,  and  ascertain  from  the  pleadings  where 
the  real  controversy  lies,  and  arrange  the  parties  accordingly. 
Parties  cannot,  by  arranging  themselves  as  plaintiffs  or  defend- 
ants in  a  cause,  create  a  fictitious  ground  of  federal  jurisdiction. 
This  is  denominated  a  joinder  of  parties  to  confer  jurisdiction.66 
Where  there  are  several  defendants  to  a  suit  some  of  whom  have 
the  required  diverse  citizenship  to  support  the  bill,  and  some  who 
have  not,  jurisdiction  may  be  retained  over  the  defendants  as  to 
whom  diversity  of  citizenship  exists,  and  a  dismissal  of  the  com- 
plaint may,  and  in  the  proper  case  will,  be  permitted  against 
defendants  who  are  not  found  to  be  within  the  jurisdiction  of 
the  court,  unless  such  defendants  are  indispensable  to  the  entry 
of  a  decree  against  the  remaining  defendants,  and  when  it  may 
be  done  without  prejudice.67  When  the  parties  are  before  the 
court  the  court  will,  for  the  purpose  of  ascertaining  the  jurisdic- 
tion, arrange  them  according  to  their  actual  interests,  and  place 
them  on  the  side  of  the  controversy  to  which  they  belong,  and, 
if  it  then  appears  that  the  controversy  is  not  between  citizens  of 
different  states,  the  court  is  without  jurisdiction.68  If  some  of  the 
parties  plaintiff  have  "interests  identical  with  some  of  the  par- 
ties defendant,  and  the  interest  is  not  separable,  you  cannot  sepa- 
rate them  because  they  are  citizens  of  different  states  to  get 
jurisdiction  by  diversity."69  • 

66  Bland  v.  Fleeman,  69  Fed.  669,  672:  Stephens  v.  Smartt,  172  Fed.  466. 
471. 

6T  Horn  v.  Lockhart,  17  Wall.  (U.  S.)  570,  21  L.  Ed.  657;  Oxley  Stave 
Co.  v.  Coopers'  International  Union,  72  Fed.  695;  Mason  v.  Dullagham, 
82  Fed.  689,  27  C.  C.  A.  296;  Grove  v.  Grove,  93  Fed.  865;  Smith  v.  Con- 
sumers' Cotton-Oil  Co.,  86  Fed.  359,  30  C.  C.  A.  103;  Delaware,  L.  &  W.  R. 
Co.  v.  Frank,  110  Fed.  689. 

68  Marvin  v  Ellis,  9  Fed.  367;  Covert  v.  Waldron,  33  Fed.  311;   Rich  v. 
Bray.  37  Fed.  273,  2  L.  R.  A.  225;  Williams  v.  Nottawa,  104  U.  S.  209,  2(1 
L.  Ed.  719;  Detroit  City  v.  Dean,  106  U.  S.  537,  27  L.  Ed.  300,  1  Sup.  Ct. 
560;  Mansfield  etc.  R.  Co.  v.  Swan,  111  U.  S.  379,  28  L.  Ed.  462,  4  Sup.  Ct. 
510;  Cashman  v.  Amador  etc.  Canal  Co.,  118  U.  S.  58,  30  L.  Ed.  72,  6  Sup.  Ct. 
926;  Cilley  v.  Patten,  62  Fed.  498;  Walster  v.  United  States.  42  Fed.  892; 
Patten  v.  Cilley,  50  Fed.  337,  1  C.  C.  A.  522;  In  re  Cilley,  58  Fed.  977. 

69  Carroll  v.  Chesapeake  &  O.  Coal  Agmcy  Co.,  124  Fed.  305,  309,  61  C.  C.  A. 
49;  Mangels  v.  Donau  Brewing  Co.,  53  Fed.  513;   Dawson  v.  Columbia  Ave. 


§  157,  Ch.  7  MANUAL  OP  FEDERAL  PROCEDURE.  92 

In  Old  Colony  Trust  Co.  v.  Atlanta  Ry.  Co.,  100  Fed.  798, 
which  was  a  suit  by  a  trust  company  against  two  railroad  com- 
panies to  enjoin  the  former  company  from  enforcing  a  right  which 
it  said  it  had  obtained  by  an  ordinance  of  the  city  to  condemn  a 
certain  portion  of  the  track  of  the  latter  company,  the  latter 
company  came  into  court  by  cross-bill,  and  adopted  all  of  the 
allegations  of  the  bill  of  the  trust  company,  and  arranged  itself 
by  all  pleadings  on  the  side  of  the  litigation  with  the  trust  com- 
pany. The  court  said:  "The  pleadings  put  it  on  the  side  of  the 
complainant  necessarily;  its  interests  are  there  very  clearly;  the 
whole  countenance  Of  the  case  puts  the  latter  railway  company  on 
the  same  side  with  the  trust  company  in  this  litigation.  So,  I  think 
there  can  be  no  question  here  that  it  is  not  only  the  duty  of  the 
court,  but  it  is  its  imperative  duty,  under  the  law,  to  put  the 
latter  railway  company  on  the  side  with  the  complainant;  and  it 
being  a  citizen  of  Georgia,  and  the  defendant  railway  company 
being  a  citizen  of  Georgia,  necessarily  the  jurisdiction  fails.  It 
is  well  understood  that  this  court,  however,  will  not  oust  its  own 
jurisdiction — will  not  defeat  its  own  jurisdiction — unless  it  is  met 
squarely  with  a  state  of  facts  which  requires  it;  that  is,  where 
litigation  is  brought  into  court,  the  court  will  not  seek  to  rid  itself 
of  hearing  the  case,  if  it  finds  that,  by  dispensing  with  certain 
parties,  it  can  relieve  the  existing  situation,  and  have  only  proper 
parties  before  the  court  on  the  question  of  diverse  citizenship.  The 
question  then  arises 'here,  whether  or  not  the  latter  railway  com- 
pany is  an  indispensable  party  to  this  litigation.  If  it  is  not,  of 
course  the  court,  under  the  rule  and  practice  just  suggested,  would 
dismiss  it  from  the  litigation,  and  leave  the  case  cognizable  in  the 
circuit  court.  Now,  can  this  litigation  be  settled  without  the 
presence  of  the  latter  company?  Will  the  court  undertake  to 
decree  that  A  has  a  right  against  B  at  the  instance  of  C,  without 
having  B  before  it?  In  my  judgment,  it  is  absolutely  necessary 

Sav.  Fund  etc.  Co.,  197  U.  S.  178,  49  L.  Ed.  713,  25  Sup.  Ct.  420;  Joseph 
Dry  Goods  Co.  v.  Hecht,  120  Fed.  761,  57  C.  C.  A.  64;  Venner  v.  Great 
Northern  R.  Co.,  209  U.  8.  24,  52  L.  Ed.  666,  28  Sup.  Ct.  328;  Gage  v.  River- 
side Trust  Co.,  156  Fed.  1003. 


93  DIVERSE   CITIZENSHIP.  Ch.  7,  §  158 

to  have  the  latter  company  before  the  court  in  order  to  determine 
and  fully  dispose  of  the  issues  presented  in  this  case.  In  that 
view,  there  is  but  one  course  for  the  court  to  pursue,  and  that  is 
to  dismiss  this  litigation  from  the  court  for  want  of  jurisdiction 
on  account  of  the  citizenship  of  the  parties;  and  this  without  preju- 
dice to  the  rights  of  the  parties  in  the  case." 

Where  a  copartnership  is  sued  one  or  more  of  the  partners  may 
be  left  out,  when  they  are  citizens  of  the  same  state  as  the  plain- 
tiff, so  as  to  give  the  federal  courts  jurisdiction.70  But  previous 
to  this  in  Ruble  v.  Hyde,  1  McCrary,  513,  3  Fed.  331,  it  had  been 
held  that  a  copartner  could  not  be  left  out  to  give  jurisdiction 
to  the  federal  courts,  and  as  this  ease  was  not  mentioned  in  Smith 
v.  Consumers'  Cotton-Oil  Co.,  86  Fed.  359,  30  C.  C.  A.  103,  it  would 
appear  that  it  had  been  overlooked,  or  there  would  have  been  a 
different  conclusion  on  a  similar  statement  of  facts. 

When  a  suit  is  brought  in  the  name  of  a  state  on  the  relation 
of  an  individual,  it  is  the  citizenship  and  the  residence  of  the 
individual  that  govern  the  jurisdiction  of  the  circuit  court.71 

§  158.  Venue  as  Affecting  Jurisdiction  Based  on  Diverse 
Citizenship. 

Part  §  51,  Jud.  Code.  "...  Where  the  jurisdiction  is 
founded  only  on  the  fact  that  the  action  is  between  citizens 
of  different  states,  suit  shall  be  brought  only  in  the  district 
of  the  residence  of  either  the  plaintiff  or  the  defendant." 
(Supra,  §  61.) 

By  reason  of  the  provision  of  the  statute  above  quoted,  a  suit 
by  a  citizen  of  one  state  against  a  citizen  of  another  state  broutrht 
in  a  third  state  would  not  lie,  because  the  venue  would  be  improp- 
erly laid  and  on  timely  objection  the  suit  would  be  dismi  scd.  But 

70  §  50,  Jud.  Code,  §  73,  supra;  Clearwater  v.  Meredith,  21  How.  (U.  8.) 
489,   16  L.  Ed.  201;  Inbusch   v.  Farwcll,   1   Black   (U.   S.),  566,  17  L.  Ed. 
188;    Smith   v.    Consumers'   Cotton   Oil   Co.,   86   Fed.   359,   30   C.   C.   A.   103; 
Barney  v.  Baltimore  City,  6  Wall.  (U.  S.)  280,  18  L.  Ed.  825. 

71  Indiana  v.  Glover,  155  U.  S.  513,  39  L.  Ed.  243,  15  Sup.  Ct.  186;  McNutt 
r.  Bland,  2  How.-(U.  S.)  9,  11  L.  Ed.  159. 


§  159,  Ch.  7  MANUAL  OP  FEDERAL  PROCEDURE.  94 

venue  not  being  jurisdietional,  the  defect  might  be  waived  by  the 
defendant's  failure  to  object  at  the  outset  of  the  action. 

This  is  a  very  different  matter  from  that  discussed  in  the  pre- 
ceding section.  The  following  illustration  will  show  the  difference 
in  the  two  classes  of  cases: 

Supposing  a  citizen  of  California  sued  a  citizen  of  Nevada  to- 
gether with  a  citizen  of  California  in  the  federal  district  court 
in  Arizona.  The  fact  that  there  was  a  California  citizen  on  each 
side  of  the  controversy  would  be  fatal  to  setting  up  diverse  citizen- 
ship as  a  ground  of  federal  jurisdiction,  unless  the  suit  against 
the  California  defendant  could  be  dismissed.  Assuming  that  this 
could  be  done,  leaving  the  contest  between  the  California  and  a 
Nevada  citizen,  there  would  be  the  requisite  diversity  of  citizen- 
ship as  a  ground  of  federal  jurisdiction,  and  the  Arizona  federal 
court  would  not  be  deprived  of  jurisdiction  unless  the  Nevada 
defendant  moved  to  dismiss  for  defect  in  venue. 

§  159.  Issue  of  Citizenship — How  Raised.  The  required  diver- 
sity of  citizenship  must  appear  on  the  face  of  initial  pleading  on 
the  part  of  the  complainant,  and  if  it  does  not  appear,  the  court 
will  assume  that  it  has  no  jurisdiction  and  dismiss  the  bill.72  If 
the  suit  is  in  equity,  the  matter  is  governed  by  the  Equity  Rule  29, 
providing  for  a  motion  to  dismiss  if  the  fact  that  there  is  not  a 
proper  diversity  of  citizenship  appears  on  the  face  of  the  bill,  or 
in  the  answer  if  it  does  not  appear  on  the  face  of  the  bill. 

72  Boston  Safe  Deposit  &  Trust  Co.  v.  City  of  Racine,  97  Fed.  817;  Con- 
solidated Water  Co.  v.  Babcock,  76  Fed.  243;  First  National  Bank  v.  Rad- 
ford  Trust  Co.,  80  Fed.  569,  26  C.  C.  A.  1;  Timmons  v.  Elyton  Lanrl  Co., 
139  U.  S.  378,  35  L.  Ed.  195,  11  Sup.  Ct.  585;  Home  v.  George  H.  Hammond 
Co.,  155  U.  S.  394,  39  L.  Ed.  197,  15  Sup.  Ct.  167. 


95  DIVERSE   CIT1ZENSUIP.  Ch.  7,  §  159 

If  a  motion  to  dismiss  is  filed  it  may  be  in  the  following  form: 
In  the  District  Court  of  the  U.  S.  for  the District  of  — > — , Division. 

John  Doe, 

Plaintiff, 


v. 

Richard  Roe, 

Defendant. 


MOTION  TO  DISMISS. 


And  now  comes  Richard  Roe,  the  defendant  in  the  above-entitled  action, 
and  moves  the  court  to  dismiss  this  action  and  that  he  take  his  costs  in 
this  suit  incurred,  for  that  it  appears  by  the  pleadings  filed,  [or  by  the  evi- 
dence taken],  in  the  cause  that  [naming  party]  is  not  a  citizen  of 

the   state   of  ,  as   alleged,   and  therefore   no   diversity   of    citizenship 

exists  as  alleged  and  upon  which  basis  the  court  is  alleged  to  have  juris- 
diction. 

A.  B., 

Solicitor,  etc. 

It  is  a  practice  to  be  recommended,  that  the  question  of  diver- 
sity of  citizenship  should  be  raised  in  the  answer,  before  the  case 
goes  to  trial.  If  it  is  not  raised,  the  court  will  not  infer  a  want 
of  jurisdiction  unless  it  affirmatively  appears  in  the  legitimate 
evidence  taken  on  the  main  issues  in  the  case.  The  court  will 
not  admit  evidence  on  issues  not  raised  in  the  pleadings.  But  if 
the  issue  is  raised  in  the  answer,  all  evidence  tending  to  prove 
the  issue  will  be  admitted.  If  the  answer  raises  the  issue  of 
diversity  of  citizenship,  it  may  be  substantially  as  follows: 
Tn  the  District  Court  of  the  U.  S.  for  the District  of , Division. 

John  Doe, 

Plaintiff, 

ANSWIB. 

Richard  Roe, 

Defendant.  „ 

Comes  now  the  defendant,  Richard  Roe,  and  answers  plaintiff's  bill  of 
complaint,  as  follows,  to  wit: — 

Denies  that  the  plaintiff  is  now,  or  ever  has  been  a  citizen  of  the  state 

of [naming  state]  or  that  he  is  now,  or  ever  has  been  an  inhabitant  of 

said  state  of [naming  state]  or  that  he  does  now,  or  ever  has  resided 

therein.  But  defendant  alleges  that  plaintiff  is  now,  and  at  the  commence- 
ment of  this  suit  was,  a  citizen  and  resident  of  the  state  of  [naming 

state}  of  which  state,  that  is,  the  'state  of  [naming  state]  the  defend- 
ant Richard  Roe  is  and  was  at  the  commencement  of  this  action,  a  citizen 


§  160,  Ch.  7  MANUAL  OF  FEDERAL  PROCEDURE.  96 

and  resident.     That  there  IB,  therefore,  no  diversity  of  citizenship,  nor  ground 
of  jurisdiction  in  this  court. 

[Then  take  up  other  defenses  t'o  the  bill.] 

Wherefore  defendant  prays  the  said  plaintiff,  John  Doe,  take  nothing  by 
Ms  bill,  that  the  said  bill  be  dismissed,  and  that  the  defendant  have  his 
costs  herein  incurred. 

A.  B., 
Solicitor. 

If  the  action  is  at  law  the  issue  would  be  raised  in  the  same 
manner  as  a  question  of  jurisdiction  in  the  state  court  in  which 
that  district  court  is  situated.  All  defenses  in  an  action  at  law 
are  open  to  a  defendant  in  the  district  court  of  the  United  States 
under  any  form,  of  plea,  answer,  or  demurrer,  which  would  have 
been  open  to  him  under  like  pleading  in  the  courts  of  the  state 
within  which  the  district  court  is  held.  This  may  be  by  general 
denial  where  the  state  law  permits.73  If  the  defense  of  no  juris- 
diction must  be  especially  pleaded  in  the  state  court,  it  may  be 
so  pleaded  in  the  federal  court,  and  testimony  in  reference  to 
the  citizenship  of  the  parties  is  only  admissible  in  support  of 
allegations  properly  made  in  the  pleadings.74  If  the  issue  is  raised 
by  demurrer  in  the  state  court,  the  same  rule  applies  in  the  dis- 
trict court.75 

§160.  When  Want  of  Diversity  Appears  on  the  Trial.  It 
may  happen  that  the  want  of  the  required  citizenship,  when  it 
does  not  appear  in  the  pleadings,  and  is  not  raised  in  the  answer, 
will  appear  on  the  trial  of  the  case.  If  it  should  appear  thus,  it  is 
the  duty  of  the  court  sua  sponte  to  dismiss  the  case  without  either 

73  Chemung  Canal  Bank  v.  Lowery,  93  U.  S.  72,  23  L.  Ed.  806;  Oscanyan 
v.  Winchester   Repeating   Arms   Co.,  Fed.  Gas.   No.   10,600,   15   Blatchf.   79, 
17  Am.  Law  Reg.  (N.  S.)  626,  13  Amer.  Law  Rev.  161;  affirmed,  Oscanyan 
v.  Arms  Co.,  103  U.  S.  261,  26  L.  Ei.  539;  Lafayette  Bridge  Co.  v.  Streator, 
105  Fed.  729;  Theroux  v.  Northern  Pac.  R.  Co.,  64  Fed.  84,  87,  12  C.  C.  A. 
52;   Johnston  v.    Klopsch,   88    Fed.   692;   Celluloid    Mfg.   Co.   v.   American 
Zylonite  Co.,  34  Fed.  744;  Frank  v.  Chetwood,  9  Rep.  6,  9  Fed.  Gas.  No. 
5051. 

74  Preferred  Ace.  Ins.  Co.  v.  Barker,  93  Fed.  158,  35  C.  C.  A.  250. 

75  Chemung  Canal  Bank  v.  Lowery,  93  U.  S.  76,  23  I*.  Ed.  806.    See,  also, 
Kent  v.  Bay  State  Gas  Co.,  93  Fed.  887. 


97  DIVERSE   CITIZENSHIP.  Ch.  7,  §  101 

motion  or  suggestion.     But  the  defendant  may  take  the  initiative 
by  filing  a  motion.78 

§57,  Jud.  Code.  "If,  in  any  suit  commenced  in  a  district 
court,  or  removed  from  a  state  court  to  a  district  court  of  the 
United  States,  it  shall  appear  to  the  satisfaction  of  said  dis- 
trict court,  at  any  time  after  such  suit  has  been  brought  or  re- 
moved thereto,  that  such  suit  does  not  really  and  substan- 
tially involve  a  dispute  or  controversy  properly  within  the 
jurisdiction  of  said  district  court,  or  that  the  parties  to  ?aid 
suit  have  been  improperly  or  collusively  made  or  joined,  either 
as  plaintiffs  or  defendants,  for  the  purpose  of  creating  a  case 
cognizable  or  removable  under  this  chapter,  the  said  district 
court  shall  proceed  no  further  therein,  but  shall  dismiss  the 
suit,  or  remand  it  to  the  court  from  which  it  was  removed, 
as  justice  may  require,  and  shall  make  such  order  as  to  costs 
as  shall  be  just."  (36  Stats.  1098;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  398;  1  U.  S.  Comp.  Stats.  1916,  §  1019,  p.  1033.) 

Thus,  the  court  must  dismiss  the  case  at  once  if  it  appears  at 
any  time  during  the  progress  of  the  case  that  it  is  without  juris- 
diction.77 When  the  issue  is  raised  it  may  be  tried  by  the  judge 
or  submitted  to  a  jury.78 

§  161.    Amendment  to  Show  Diversity. 

§  274c,  Jud.  Code,79  by  Amendment  March  3,  1915,  c.  90. 
"That  where,  in  any  suit  brought  in  or  removed  from  any 
state  court  to  any  district  of  the  United  States,  the  jurisdic- 

76  Williams  v.  Nottawa,  104  U.  S.  212,  2fi  L.  Ed.  720;  Farmington  Village 
Corp.  v.  Pillsbury,  114  U.  S.  144,  29  L.  Ed.  114,  5  Sup.  Ct.  807;  Little  v. 
Giles,  118  U.  S.  603,  604,  30  L.  Ed.  269,  7  Sup.  Ct.  32;  Hartog  v.  Memory,  116 
U.  S.  588,  29  L.  Ed.  725,  6  Sup.  Ct.  521;  Morris  v.  Gilmer,  129  U.  S.  315, 
32  L.  Ed.  690,  9  Sup.  Ct.  289. 

77  Turner  v.  Farmers'  Loan  &  T.  Co.,  106  U.  S.  555,  27  L.  Ed.  274,  1  Sup. 
Ct.  519;  King  Iron  Bridge  Co.  v.  Otoe  County,  120  U.  S.  226,  30  L.  Ed.  624, 
7  Sup.  Ct.  552. 

78  Wetmore  v.  Bymer,  169    U.  S.  115,  42  L.  Ed.  684,  18  Sup.   Ct.  293; 
Canadian  Pac.  R.  Co.  v.  Wenham,  146  Fed.  206,  207. 

79  Amendment,  Swayne  v.  Barsch  (9th  Cir.),  226  Fed.  581,  141  C.  C.  A. 
337.     By  consent,  Kennedy  v.   Bank   of   Georgia,   8   How.    (U.   S.)    586,   12 
L.  Ed.   1209.     Discretionary  power,   Ayers    v.    Watson,   137   U.   S.   584,   34 
L.  Ed.  803,  11  Sup.  Ct.  201.     Does  not  include  dismissal,  Thomas  v.  Ander- 
san   (8th  Cir.),  223  Fed.  41,  138  C.  C.  A.  405.     On  removal,  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  418. 


§  161,  Ch.  7  MANUAL  OF  FEDERAL  PROCEDURE.  98 

tion  of  the  district  court  is  based  upon  the  diverse  citizenship 
of  the  parties,  and  such  diverse  citizenship  in  fact  existed  at 
the  time  the  suit  was  brought  or  removed,  though  defectively 
alleged,  either  party  may  amend  at  any  stage  of  the  proceed- 
ings and  in  the  appellate  court  upon  such  terms  as  the  court 
may  impose,  so  as  to  show  on  the  record  such  diverse  citizen- 
ship and  jurisdiction,  and  thereupon  such  suit  shall  be  pro- 
ceeded with  the  same  as  though  the  diverse  citizenship  had  been 
fully  and  correctly  pleaded  at  the  inception  of  the  suit,  or,  if 
it  be  a  removed  case,  in  the  petition  for  removal."  (38  Stats. 
956 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1061 ;  2  U.  S.  Comp.  Stats. 
1916,  §  1251c,  p.  2023.) 


99  AMOUNT  IN  CONTBOVERSY.  Ch.  8,  §  170 


CHAPTER  8. 

AMOUNT  IN  CONTEOVERSY. 

SEC. 

170.  In  General. 

171.  When  Amount  in  Controversy  is  Material. 

172.  Same — Removal  of  Land  Grant  Cases. 

173.  Wlhen  the  Amount  in  Controversy  is  not  Material. 

174.  What  is  "Amount  in  Controversy." 

175.  Amount  Stated   in  Declaration  or   Bill   Controls   Unless   Pleaded   Erro- 

neously or   in   Bad   Faith. 

176.  Amount  in  Controversy  Includes  What. 

177.  Effect  of  Valid  Setoff  or  Payment. 

178.  Aggregating  Amounts1  to  Create  Jurisdiction. 

179.  Amendment  to  Show. 

180.  State  Statutes  Do  not  Control  as  to  Splitting  Demands. 

181.  Raising  Issue  as  to  Amount  or  Good  Faith. 

§  170.  In  General.  The  federal  statutes  have  made  the  sum 
or  value  of  the  matter  in  controversy  an  essential  element  of  a  large 
number  of  cases  of  which  the  district  courts  have  jurisdiction  both 
originally  and  on  removal. 

The  matter  in  controversy  must  exceed,  exclusive  of  interest 
and  costs,  the  sum  or  value  of  $3,000  in  cases  brought  in  the  fed- 
eral court  originally  or  on  removal,  and  whether  the  action  be 
based  on  the  ground  of  diverse  citizenship  or  a  federal  question, 
but  with  certain  exceptions  in  the  latter  class  of  cases.  Cases  in 
which  the  amount  in  controversy  is  material  are  specifically  enumer- 
ated in  §  171  following. 

The  amount  in  controversy  is  not  material  in  suits  brought  by 
the  United  States.1  The  amount  is  not  material  in  suits  between 
citizens  of  the  same  state  claiming  under  land  grants  from  different 
states  in  cases  originally  brought  in  the  federal  court,2  but  is 

1  United  States  v.  Say  ward,  160  U.  S.  493,  40  L.  Ed.  508,  16  Sup.  Ct.  371; 
United  States  v.  Reid,  90  Fed.  522;  United  States  v.  Flournoy  Live  Stock 
etc.  Co.,  71  Fed.  576;  United  States  v.  Kentucky  River  Mills,  45  Fed.  273; 
United  States  v.  Shaw,  39  Fed.  433,  3  L.  B.  A.  232. 

2  United  States  v.  Say  ward,  160  U.  S.  493,  40  L.  Ed.  508,  16  Sup.  Ct. 
371. 


§  171,  Ch.  8  MANUAL  OF  FEDERAL  PROCEDURE.  100 

material  on  removal  under  §  30,  Jud.  Code  (§  172  below).  The 
amount  is  not  material  in  eases  of  which  the  federal  courts  have 
exclusive  jurisdiction  and  in  other  cases  especially  excepted  in 
paragraphs  2  to  25  of  §  24,  Jud.  Code.  The  provisions  of  §  24, 
Jud.  Code,  setting  out  the  cases  in  which  the  amount  in  contro- 
versy is  not  material,  are  indicated  in  §  173  hereafter.  §  24,  Jud. 
Code,  is  quoted  in  full  §  94  above. 

The  present  chapter  gives  some  suggestions  as  to  what  is  meant 
by  the  sum  or  value  of  the  matter  in  controversy  and  as  to  the 
pleading  and  determination  of  the  issue  of  "amount  in  contro- 
versy. ' ' 

§  171.    When  Amount  in  Controversy  is  Material. 

§  24,  Jud.  Code.  ' '  The  district  court  shall  have  original 
jurisdiction  as  follows:  First.  Of  all  suits  of  a  civil  nature, 
at  common  law  or  in  equity,  .  .  .  where  the  matter  in  con- 
troversy exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  of  three  thousand  dollars,  and  (a)  arises  under  the 
Constitution  or  laws  of  the  United  States  or  treaties  made,  or 
which  shall  be  made,  under  their  authority,  or  (b)  is  between 
citizens  of  different  states,  or  (c)  is  between  citizens  of  state 
and  foreign  states,  citizens  or  subjects.  .  .  .  Provided,  how- 
ever, That  the  foregoing  provision  as  to  the  sum  or  value  of 
the  matter  in  controversy  shall  not  be  construed  to  apply  to 
any  of  the  cases  mentioned  in  the  succeeding  paragraphs  of 
this  section.  ..."  (Quoted  in  full  above,  §  94.) 

§  28,  Jud.  Code.  "Any  suit  of  a  civil  nature,  at  law  or  in 
equity,  arising  under  the  Constitution,  or  laws  of  the  United 
States,  or  treaties  made,  or  which-  shall  be  made,  under  their 
authority,  of  which  the  district  courts  of  the  United  States 
are  given  original  jurisdiction  by  this  title,  which  may  now 
be  pending  or  which  may  hereafter  be  brought,  in  any  state 
court,  may  be  removed.  .  .  .  Any  other  suit  of  a  civil  nature, 
at  law  or  in  equity,  of  which  the  district  courts  of  the  United 
States  are  given  jurisdiction  by  this  title,  and  which  are  now 
pending  or  which  may  hereafter  be  brought,  in  any  state  court, 
may  be  removed.  ..."  (See  Amendment  Jan.  20,  1914, 
quoted  §  204,  post.) 


101  AMOUNT   IN   CONTROVERSY.  Ch.  8,  §§  172-173 

§  172.    Same — Removal  of  Land  Grant  Cases. 

§  30,  Jud.  Code3  (Re-enacting  part  §  647,  Rev.  Stats.).  "If 
in  any  action  commenced  in  a  state  court  the  title  of  land  be 
concerned,  and  the  parties  are  citizens  of  the  same  state  and 
the  matter  in  dispute  exceeds  the  sum  or  value  of  three  thou- 
sand dollars,  exclusive  of  interest  and  costs,  the  sum  or  value 
being  made  to  appear,  one  or  more  of  the  plaintiffs  or  defend- 
ants, before  the  trial,  may  state  to  the  court,  and  make  affi- 
davit if  the  court  require  it,  that  he  or  they  claim,  and  shall 
rely  upon,  a  right  or  title  to  the  land  under  a  grant  from  a 
state,  and  produce  the  original  grant,  or  an  exemplification  of 
it,  except  where  the  loss  of  public  records  shall  put  it  out  of 
his  or  their  power,  and  shall  move  that  any  one  or  more  of  the 
adverse  party  inform  the  court  whether  he  or  they  claim  a 
right  or  title  to  the  land  under  a  grant  from  some  other  state, 
the  party  or  parties  so  required  shall  give  such  information, 
or  otherwise  not  be  allowed  to  plead  such  grant  or  give  it  in 
evidence  upon  the  trial.  If  he  or  they  inform  the  court  that 
he  or  they  do  claim  under  such  grant,  any  one  or  more  of  the 
party  moving  for  such  information  may  then,  on  petition  and 
bond,  as  hereinbefore  mentioned  in  this  chapter,  remove  the 
cause  for  trial  to  the  district  court  of  the  United  States  next 
to  be  holden  in  such  district ;  and  any  one  of  either  party  re- 
moving the  cause  shall  not  be  allowed  to  plead  or  give  evidence 
of  any  other  title  than  that  by  him  or  them  stated  as  afore- 
said as  the  ground  of  his  or  their  claim."  (36  Stats.  1096;  5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  375;  1  U.  S.  Comp.  Stats.  1916, 
§  1012,  p.  1014;  Foster's  Federal  Practice,  5th  ed.,  pp.  20,  1832, 
1869.) 

§  173.  When  the  Amount  in  Controversy  is  not  Material.  In 
many  cases  under  §  24,  Jud.  Code,  the  amount  in  controversy  is 
immaterial.  The  provision  as  to  value  of  the  matter  in  contro- 
versy is  expressly  stated  in  §  24,  Jud.  Code,  not  to  apply  to  the 
cases  already  mentioned,  §§  91  and  92  above,  as  coming  under  the 
exclusive  jurisdiction  of  the  federal  courts,  and  also  not  to  apply  to 
suits  under  the  following  laws  mentioned  in  the  various  subdivisions 

3  This  act  substitutes  $3,000  for  $2,000  as  the  jurisclictional  amount,  and 
substitutes  the  words  "district  court"  for  the  words  "circuit  court."  Pawlet 
v.  Clark,  9  Cranch  (U.  S.),  292,  3  L.  Ed.  735.  In  general,  Stevenson  v.  Fain, 
195  U.  S.  165,  49  L.  Ed.  142,  25  Sup.  Ct.  6.  « 


§  174,  Ch.  8  MANUAL  OP  FEDERAL  PROCEDURE.  102 

of  §  24,  Jud.  Code,  as  follows :  admiralty  causes,  seizures  and  prizes 
(subd.  3)  ;  relating  to  slave  trade  (subd.  4)  ;  cases  under  internal 
revenue,  customs  and  tonnage  laws  (subd.  5) ;  suits  under  postal 
laws  (subd.  6)  ;  suits  under  the  trademark  laws  (subd.  7)  ;  suits  for 
violation  of  interstate  commerce  laws  (subd.  8)  ;  suits  on  debentures 
for  drawback  of  duties  (subd.  10)  ;  suits  for  injuries  on  account  of 
acts  done  under  laws  of  the  United  States  (subd.  11)  ;  suits  concern- 
ing civil  rights  (subd.  12)  ;  suite  against  persons  having  knowledge 
of  conspiracy  under  civil  rights  laws  (subd.  13)  ;  suits  to  redress  the 
deprivation  under  color  of  law  of  civil  rights  (subd.  14)  ;  suits  to  re- 
cover certain  offices  (subd.  15)  ;  suits  involving  national  banking  as- 
sociation (subd.  16)  ;  suits  by  aliens  for  torts  (subd.  17)  ;  suits 
under  immigration  and  contract  labor  laws  (subd.  22)  ;  suits  con- 
cerning allotment  of  lands  to  Indians  (subd.  24) ;  partition  suits 
where  United  States  is  a  joint  tenant  (subd.  25).  In  criminal 
prosecutions  under  the  foregoing  classification  or  suits  for  penal- 
ties and  forfeitures  the  jurisdiction  would  be  exclusive  of  the  state 
courts,  under  §  256,  Jud.  Code,  subds.  1  and  2  (§  92  above). 

The  amount  or  value  in  controversy  is  also  immaterial  in  all 
suits  in  law  or  in  equity,  brought  by  the  United  States  or  by  any 
officer  thereof  authorized  by  law  to  sue,  or  between  citizens  of  the 
same  state  claiming  lands  under  grants  from  different  states  under 
the  first  part  of  §  24,  Jud.  Code,  quoted  §  94  above.  But  if  in 
any  action  commenced  in  a  state  court  the  title  of  land  be  con- 
cerned, and  the  parties  are  citizens  of  the  same  state  claiming 
under  land  grants  of  different  states,  the  matter  in  dispute  must 
exceed  $3,000,  exclusive  of  interest  and  costs,  to  entitle  a  party  to 
remove  to  the  federal  court  (§  30,  Jud.  Code). 

§  174.  What  is  "Amount  in  Controversy."  The  statutes  and 
decisions  use  the  terms  interchangeably,  "amount  in  controversy," 
"matter  in  dispute,"  "amount  in  dispute." 

By  such  terms  are  meant  either  the  amount  sued  for  in  good 
faith  or  the  value  of  the  property  or  .right  involved,  depending 
upon  the  nature  of  the  case. 

Generally  speaking,  when  there  is  a  definite  amount  that  can  be 
determined  as  being  in  dispute  between  the  parties,  this  will  fix 


103  AMOUNT  IN  CONTROVERSY.  Ch.  8,  §  174 

the  jurisdiction.  But  where  a  particular  matter  of  itself  less  than 
the  jurisdictional  amount  or  value  involves  a  right  or  estate  as  the 
subject  of  the  dispute,  which  right  or  estate  depends  upon  the 
determination  of  the  controversy,  the  value  of  the  right  or  estate 
will  fix  the  jurisdiction. 

Thus,  the  specific  amount  or  value  involved  governs  in  a  suit  to 
enjoin  an  illegal  property  tax,  the  amount  of  the  tax;4  or  to  remove 
as  a  cloud  on  title  a  claim  for  a  specified  amount5  or  enforce  a 
lien,6  or  partition  of  a  specified  interest,7  or  to  obtain  specific  per- 
formance of  contract.8 

But  there  are  many  cases  where  a  specific  amount  or  value  does 
not  measure  the  amount  or  value  of  the  matter  in  controversy,  but 
the  value  of  the  object  to  be  obtained  and  right  to  be  protected, 
controls.  For  instance,  the  maintenance  of  a  schedule  rate,0  pre- 
venting the  establishment  of  a  new  schedule,10  the  property  right 
of  board  of  trade  in  its  market  quotations;11  prevention  of  ticket 
scalping;12  enforcement  of  a  joint  interest  in  a  fund  as  on  the  dis- 
solution of  a  partnership  or  corporation,13  suit  to  quiet  title  or  to 
remove  cloud  from  title,  where  the  value  of  the  land  is  generally 
the  determining  element.14 

If  the  matter  in  controversy  has  no  pecuniary  measure,  the 
federal  courts  can  take  no  jurisdiction,  as  in  habeas  corpus  pro- 

4  Douglas  Co.  v.  Stone,  191  U.  S.  557,  48  L.  Ed.  301,  24  Sup.  Ct  843; 
Turner  v.  Jackson  Lumber  Co,,  159  Fed.  926,  87  C.  C.  A.  106;  Purnell  y. 
Page,  128  Fed.  496. 

o  Cooper  v.  Preston,  105  Fed.  403. 

«  Stillwell-Bierce  &  S.  V.  Co.  v.  Williamston  Oil  &  Fertilizer  Co.,  80  Fed. 
68. 

7  Rich  v.  Bray,  37  Fed.  273,  276,  2  L.  R.  A.  225. 

8  Johnston  v.  Trippe,  33  Fed.  530. 

»  Texas  &  P.  R.  Co.  v.  Kuteman,  54  Fed.  547,  4  C.  C.  A.  503. 

10  Northern  P.  R.  Co.  v.  Pacific  Coast  etc.  Assn.,  165  Fed.  2,  91  C.  C.  A. 
39;  Chesapeake  &  D.  Canal    Co.  v.  Gring,  159  Fed.  662,  86  C.  C.  A.  530; 
Southern  P.  Co.  v.  Bartine,  170  Fed.  725 

11  Board  of  Trade  v.  Cella  Commission  Co.,  145  Fed.  28,  76  C.  C.  A.  28; 
John  D.  Park  &  Sons  Co.  v.  Hartman,  153  Fed.  24,  12  L.  R.  A.   (N.  S.)  135, 
82  C.  C.  A.  158. 

12  Nashville,   C.   &  St.  R.  R.   Co.  v.   McConnell,   82  Fed.   65;    Delaware, 
L.  &  W.  R.  Co.  v.  Frank,  110  Fed.  689. 

13  Kent  v.  Honsinger,  167  Fed.  620;  Taylor  v.  Decatur  Mineral  &  Land 
Co.,  112  Fed.  449. 

i*  Holland  v.  Challen,  110  U.  S.  15,  28  L.  Ed.  52,  3  Sup.  Ct.  495;  Smith 
v.  Adams,  130  U.  S.  167,  32  L.  Ed.  895,  9  Sup.  Ct.  566. 


§§  175-176,  Ch.  8     MANUAL  OP  FEDERAL  PROCEDURE.  104 

ceedings  by  a  father  to  obtain  possession  of  his  infant  child,15  or 
an  action  for  divorce,  alimony  being  within  the  discretion  of  the 
court.18 

§  175.  Amount  Stated  in  Declaration  or  Bill  Controls  Unless 
Pleaded  Erroneously  or  in  Bad  Faith.  If  the  sum  demanded  is 
so  manifestly  fictitious  as  to  make  it  legally  certain  that  the  amount 
alleged  was  only  to  get  jurisdiction  and  is  not  the  real  amount  in 
controversy,  the  court  will  dismiss.17  The  same  is  true  where  it 
appears  from  the  nature  of  the  case  stated  in  the  pleadings  that 
there  could  not  legally  be  a  judgment  for  an  amount  necessary  to 
the  jurisdiction.  Thus,  where  a  demand  for  $1,000  was  alleged  to 
be  the  value  of  certain  property,  and  in  addition  $10,000  damages 
were  claimed,  the  court  reached  the  conclusion  that  the  claim  for 
damages  could  not  be  sustained  as  a  matter  of  law,  and  the  suit 
was  dismissed.18 

§176.  Amount  in  Controversy  Includes  What.  The  statute 
says,  "exclusive  of  interest  and  costs."  Hence,  items  of  expense 
in  connection  with  a  cause  of  action  cannot  be  included  unless  the 
contract  sued  on  covers  same.19  Attorneys'  fees  may  be  added 
when  a  part  of  the  contract.20  But  where  a  statute  makes  attor- 
neys '  fees  a  part  of  the  costs,  they  may  not  be  considered.21  A  suit 
on  a  bond  and  matured  interest  coupons  which  are  no  longer  a 
mere  incident  of  the  principal  indebtedness  but  have  become  a 
principal'  obligation,  will  give  the  jurisdictional  amount.22 

15  Ex  parte  Everts,  1  Bond,  197,  8  Fed.  Caa.  No.  4581,  7  Amer.  Law  Reg. 
79. 

16  Bowman  v.  Bowman,  30  Fed.  849. 

17  Jones  v.  McCormick  Harvesting  Machine  Co.,  82  Fed.  295,  27  C.  C.  A. 
133;  Battle  v.  Atkinson,  115  Fed.  384. 

18  Vance  v.  Vandercook  Co.,  170  U.  8.  468,  42  L.  Ed.  1111,  18  Sup.  Ct. 
645 

19  Less  v.  English,  85  Fed.  471,  29  C.  C.  A.  275. 

20  Kogers  v.  Eiley,  80  Fed.  762:  Swofford  v.  Cornucopia  Mines,  140  Fed. 
958. 

21  Peters  v.  Queen  Ins.  Co.,  182  Fed.  113. 

22  Edwards  v.  Bates  County,  163  U.  S.  269,  41  L.  Ed.  155,  16  Sup.  Ct.  967. 


105  AMOUNT  IN   CONTROVERSY.  Ch.  8,  §§  177-180 

§  177.  Effect  of  Valid  Setoff  or  Payment.  A  party,  in  alleging 
the  amount  of  his  claim,  is  presumed  to  know  of  any  payments 
made  on  the  claim  or  valid  setoffs  existing  against  it,  and  hence 
if  such  payment  or  setoff  appears  from  the  record  undisputed  the 
court  will  not  have  jurisdiction.23  But  if  tKe  payment  or  setoff 
is  disputed,  the  mere  pleading  thereof  will  not  defeat  the  claim, 
because,  as  the  court  says,  "who  can  say  in  advance  that  the  de- 
fense will  be  insisted  on,  or,  if  presented,  would  be  sustained  by 
the  court?"24 

§  178.  Aggregating1  Amounts  to  Create  Jurisdiction.  If  the 
claims  are  joint  claims,  they  may  be  aggregated  to  create  the  juris- 
dictional  amount,25  but  not  if  they  are  separable.26  So,  also,  an 
assignee  of  several  claims  against  single  defendant  may  sue  in  the 
federal  court,  provided  the  several  assignors  had  the  requisite 
diversity  of  citizenship  necessary  to  confer  jurisdiction.  This  is 
so  even  though  the  claim  of  each  assignor  was  less  than  the  juris- 
dictional  amount.27 

§  179.  Amendment  to  Show.  Amendments  are  permitted  to 
show  jurisdictional  allegations,  and  this  is  true  of  the  allegations 
as  to  the  amount  in  controversy  when  the  facts  warrant  such  an 
amendment.28 

§  180.  State  Statutes  do  not  Control  as  to  Splitting1  Demands. 
The  general  rule  that  the  federal  court  will  not  follow  the  state 
laws  and  decisions  in  matters  which  affect  their  jurisdiction  applies 
to  a  state  statute  requiring  demands  to  be  split  up  into  separate 

23  Bedford  Quarries  Co.  v.  Welch,  100  Fed.  513. 

24  Schunk  v.  Moline  M.  &  S.  Co.,  147  U.  S.  500,  37  L.  Ed.  255,  13  Sup. 
Ct.  416. 

25  Holt  v.  Bergevin,  60  Fed.  2. 

26  Jones  v.  Mutual  Fidelity  Co.,  123  Fed.  506,  510. 

27  Bowden  v.  Burnham,  59  Fed.  752,  8  C.  C.  A.  248;  Bernheim  v.  Birn- 
baum,  30  Fed.  885;  Davis  v.  Mills,  99  Fed.  39. 

28  Bowden  v.  Burnham,  59  Fed.  754,  8  C.  C.  A.  249;  Bureau  o'f  National 
Literature  v.  Sells  (W.  D.  Wash.),  211  Fed.  379,  383. . 


§  181,  Ch.  8  MANUAL,  OF  FEDERAL,  PROCEDURE.  106 

suits,  which  would  defeat  the  jurisdiction  of  the  court  by  reducing 
the  demand  below  the  jurisdictional  amount.29 

§  181.  Raising  Issue  as  to  Amount  or  Good  Faith.  The  issue 
as  to  the  amount  in  controversy,  when  it  appears  from  the  face  of 
the  record  as  a  matter  of  law  that  the  proper  amount  is  not  in- 
volved, may  be  raised  in  equity  suits  under  Equity  Rule  29,  by  a 
motion  to  dismiss  or  in  the  answer,  and  at  law  by  demurrer  or 
other  appropriate  pleading  authorized  by  state  statutes.  Where 
such  defect  does  not  appear  from  the  face  of  the  record,  the  objec- 
tion should  be  made  under  Equity  Rule  29  in  the  answer  when  it 
may  be  separately  heard.  In  an  action  at  law  objection  would  be 
by  a  plea  or  other  appropriate  pleading  under  the  state  practice. 

Raising  the  issue  of  "amount"  as  a  matter  of  law,  the  following 
allegation  is  suggested: 

"Defendant  alleges  that  it  appears  on  the  face  of  the  bill  of  complaint  that 
this  ease  does  not  really  and  substantially  involve  a  dispute  or  controversy 
properly  within  the  jurisdiction  of  the  court,  in  that  the  matter  in  controversy, 
as  appears  from  the  bill  of  complaint,  does  not  exceed  the  sum  or  value  of 
three  thousand  dollars  exclusive  of  interest  and  costs." 

If  the  issue  is  as  to  good  faith,  the  following  allegation  may  be 
used: 

"That  this  suit  does  not  really  and  substantially  involve  a  dispute  or  contro- 
versy properly  within  the  jurisdiction  of  this  court  in  that  the  amount  sued 
for  as  alleged  in  the  complaint  is  not  truly  stated  and  is  not  alleged  in  good 
faith,  and  defendant  alleges  that  the  matter  in  controversy  does  not  exceed  the 
sum  or  value  of  three  thousand  dollars  exclusive  of  interest  and  costs." 

29  O'Connell  v.  Reed,  56  Fed.  531,  5  C.  C.  A.  586;  Texas  etc.  E.  Co.  v. 
Gentry,  163  U.  S.  353,  41  L.  Ed.  186,  16  Sup.  Ct.  1104. 


107  BEMOVAL  OF  CAUSES,  ETC.  Ch.  9 


CHAPTER  9. 

REMOVAL  OF  CAUSES— JURISDICTION  AND  PROCEDURE. 

SEC. 

190.  In  General. 

191.  Jurisdiction — First  Four  Classes  of  Removal  Cases. 

192.  Class  One;  Removal  by  Defendant  or  Defendants  on  Ground  of  Fed- 

eral Question. 

193.  Class   Two;    Removal   by   Nonresident   Defendant   or   Defendants   on 

Ground  of  Diverse  Citizenship. 

194.  Class  Three;   Removal   of  a  Separable   Controversy  Wholly   Between 

Citizens  of  Different  States. 

195.  Procedure  on  Removal — Class  One,  Two    and  Three — Petition  for  Re- 

moval to  be  Filed  Before  Appearance  Day  in  State  Court. 

196.  Bond  on  Removal  in  Classes  One,  Two  and  Three. 

197.  Duty  of  State  Court  in  Such  Cases. 

198.  Notice  to  Adverse  Party  in  Such  Cases. 

199.  Procedure  After  Removal  in  Classes  One,  Two,  and  Three. 

200.  Class  Four;  Removal  on  Ground  of  Prejudice. 

201.  Remanding  Separable  Controversy  in  Class  Four. 

202.  Remanding  upon  Failure  to  Show  Prejudice — Class  Four. 

203.  Remanding  in  Classes  One,  Two,  Three    and  Four. 

204.  Common  Carrier  Employers'  Liability  Cases  not  Removable,  nor  for 

Property  Damages,  Unless  in  Excess  of  $3,000  Involved. 

205.  Class  Five;    Suits  Between   Citizens  of  a  State   Under  Land  Grants 

from  Different  States. 

206.  Class  Six;  Removal  of  Suits  of  Aliens  Against  Officers. 

207.  Class  Seven;  Removal  of  Civil  Rights  Cases. 

208.  Habeas    Corpus    Proceedings    Where    Civil    Rights    Denied,    and    Other 

Cases. 

209.  Class   Eight;    Removal   in   Cases   Against   Revenue   or   Congressional 

Officers. 

210.  Procedure  on   Removal   Under   Class   Eight — Cases  Against   Revenue 

or  Congressional  Officers. 

211.  Procedure  After  Removal  in  Class  Eight. 

212.  Certiorari    and    Habeas    Corpus     Proceedings    in    Class    Eight — Suits 

Against  Revenue  or  Congressional  Officers. 

213.  Proofs  of  Records  When  Copies  Refused  by  State  Court  Clerks. 

214.  Enforcement  of  Return  of  Record  from  State  to  Federal  Courts. 

215.  Remand  or  Dismissal  of  Case  Fraudulently  or  Improperly  Removed. 

216.  Provisional  Remedies  of  State  Court  Preserved — Bonds  Given  in  State 

Suit — Valid  on  Removal. 

217.  Proceedings  After  Removal — Generally. 


§  190,  Ch.  9  MANUAL  OF  FEDERAL  PROCEDURE.  108 

§  190.  In  General.  There  are  eight  classes  of  cases  in  which 
there  may  be  a  removal  from  the  state  to  the  federal  court. 

Cases  arising  under  the  employers'  liability  act  are  specifically 
denied  removal  in  the  closing  paragraph,  §  28,  Jud.  Code,  quoted 
in  §  204,  infra. 

Class  one  includes  cases  involving  a  federal  question.  These 
may  be  removed  by  the  defendant  or  defendants  therein  without 
regard  to  his  or  their  residence.  (§  192,  infra.} 

Class  two  includes  cases  based  on  diverse  citizenship.  These  may 
be  removed  by  a  nonresident  defendant  or  defendants.  (§  193, 
infra.) 

Class  three  includes  separable  controversies  between  citizens  of 
different  states  of  either  classes  one  or  two.  Thus  any  defendant 
with  a  separable  controversy  based  on  a  federal  question,  or  any 
nonresident  defendant  relying  on  diverse  citizenship  and  with  a 
separable  controversy,  may  remove.  (§  194,  infra.) 

The  procedure  is  the  same  for  classes  one,  two  and  three.  ( §  195, 
et  seq.  infra.) 

Class  four  includes  cases  between  a  citizen  of  a  state  and  a  citizen 
of  another  state,  where  such  nonresident  defendant  may  remove  on 
the  ground  of  prejudice  or  local  influence.  (§200,  infra.)  The 
time  for  removal  and  procedure  in  this  class  of  cases  differs  from 
that  in  the  first  three  classes  of  cases. 

All  four  classes  of  cases  may  be  remanded  to  the  state  court  if 
improperly  removed,  either  under  §  28  or  §  37,  Jud.  Code.  (§  203, 
infra.) 

Class  five  includes  cases  between  citizens  of  the  same  state  claim- 
ing under  land  grants  from  different  states. '  These  are  removable 
by  either  party  under  §  30,  Jud.  Code,  and  must  involve  in  excess 
of  $3,000  exclusive  of  interest  and  costs,  although  such  amount  is 
not  required  to  give  the  federal  court  original  jurisdiction.  (§  205, 
infra.) 

Class  six  includes  cases  removable  by  defendant  nonresident 
civil  officers  in  suits  brought  against  them,  by  aliens  under  §  34, 
Jud.  Code.  (§206,  infra.) 


109  REMOVAL  OP  "CAUSES,  BTO.  Ch.  9,  §  191 

Class  seven  includes  cases  arising  under  the  civil  rights  laws. 
These  are  removable  by  a  defendant  denied  such  civil  rights  under 
§  31,  Jud.  Code.  (§  207,  infra.) 

Class  eight  includes  cases  against  revenue  or  congressional  offi- 
cers. These  cases  may  be  removed  by  them  at  any  time  before 
trial.  (§209,  w/ra.) 

There  are  general  provisions  respecting  proofs  of  state  court 
records  where  copies  are  refused  by  the  clerks  of  such  court 
( §  213,  infra)  ;  for  enforcing  the  return  of  the  record  from  the 
state  court  (§  214,  infra) ;  for  preserving  on  removal  attachment 
and  sequestration  liens,  injunctional  orders,  bonds  and  undertak- 
ings (§216,  infra),  and  for  proceedings  after  removal  (§217, 
infra).  Remanding  cases  fraudulently  or  improperly  removed, 
lacking  jurisdictional  grounds,  may  be  done  under  §  37,  Jud.  Code. 
(§215,  infra.) 

The  changes  made  in  the  practice  by  the  Judicial  Code  are  very 
few.  It  is  now  required  under  §  29,  Jud.  Code,  what  before  was 
the  general  practice,  that  the  petition  for  removal  be  verified. 
(§  195,  infra.)  The  bond  for  removal  is  now  conditioned  to  enter 
in  the  district  court  "within  thirty  days  from  the  date  of  filing 
said  petition,  a  certified  copy  of  the  record,  etc."  (§  196,  infra), 
where  formerly  the  condition  was  to  enter  suit  "on  or  before  the 
first  day  of  the  next  regular  session."  The  old  practice  of  giving 
notice  is  now  obligatory  under  §  29,  Jud.  Code,  requiring  "written 
notice  of  said  petition  and  bond"  prior  to  filing  same.  (§  198, 
infra.) 

The  forms  given  in  this  chapter  are  adapted  from  Desty's  Fed- 
eral Procedure. 

§  191.    Jurisdiction — First  Four  Classes  of  Removal  Cases. 

§58,  Jud.  Code.  "(Removal  of  suits  from  state  to  United 
States  district  courts.)  Any  suit  of  a  civil  nature,  at  law  or 
in  equity,  arising  under  the  Constitution  or  laws  of  the  United 
States,  or  treaties  made,  or  which  shall  be  made,  under  their 
authority,  of  which  the  district  courts  of  the  United  States  are 
given  original  jurisdiction  by  this  title,  which  may  now  be 


§  191,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  110 

pending  or  which  may  hereafter  be  brought,  in  any  state  court, 
may  be  removed  by  the  defendant  or  defendants  therein  to 
the  district  court  of  the  United  States  for  the  proper  district. 
Any  other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which 
the  district  courts  of  the  United  States  are  given  jurisdiction 
by  this  title,  and  which  are  now  pending  or  which  may  here- 
after be  brought,  in  any  state  court,  may  be  removed  into  the 
district  court  of  the  United  States  for  the  proper  district  by 
the  defendant  or  defendants  therein,  being  nonresidents  of 
that  state.  And  when,  in  any  suit  mentioned  in  this  section, 
there  shall  be  a  controversy  which  is  wholly  between  citizens 
of  different  states,  and  which  can  be  fully  determined  as  be- 
tween them,  then  either  one  or  more  of  the  defendants  actually 
interested  in  such  controversy  may  remove  said  suit  into  the 
district  court  of  the  United  States  for  the  proper  district. 
And  where  a  suit  is  now  pending,  or  may  hereafter  be  brought, 
in  any  state  court,  in  which  there  is  a  controversy  between  a 
citizen  of  the  state  in  which  the  suit  is  brought  and  a  citizen 
of  another  state,  any  defendant,  being  such  citizen  of  another 
state,  may  remove  such  suit  into  the  district  court  of  the  United 
States  for  the  proper  district,  at  any  time  before  the  trial 
thereof,  when  it  shall  be  made  to  appear  to  said  district  court 
that,  from  prejudice  or  local  influence,  he  will  not  be  able  to 
obtain  justice  in  such  state  court,  or  in  any  other  state  court 
to  which  the  said  defendant  may,  under  the  laws  of  the  state, 
have  the  right,  on  account  of  such  prejudice  or  local  influence, 
to  remove  said  cause :  Provided,  That  if  it  further  appear  that 
said  suit  can  be  fully  and  justly  determined  as  to  the  other 
defendants  in  the  state  court,  without  being  affected  by  such 
prejudice  or  local  influence,  and  that  no  party  to  the  suit  will 
be  prejudiced  by  a  separation  of  the  parties,  said  district  court 
may  direct  the  suit  to  be  remanded,  so  far  as  relates  to  such 
other  defendants,  to  the  state  court,  to  be  proceeded  with 
therein.  At  any  time  before  the  trial  of  any  suit  which  is  now 
pending  in  any  district  court,  or  may  hereafter  be  entered 
therein,  and  which  has  been  removed  to  said  court  from  a  state 
court  on  the  affidavit  of  any  party  plaintiff  that  he  had  reason 
to  believe  and  did  believe  that,  from  prejudice  or  local  influ- 
ence, he  was  unable  to  obtain  justice  in  said  state  court,  the 
district  court  shall,  on  application  of  the  other  party,  examine 
into  the  truth  of  said  affidavit  and  the  grounds  thereof,  and, 


Ill  REMOVAL  OP  CAUSES,  ETC.  Ch.  9,  §  192 

unless  it  shall  appear  to  the  satisfaction  of  said  court  that  said 
party  will  not  be  able  to  obtain  justice  in  said  state  court,  it 
shall  cause  the  same  to  be  remanded  thereto.  Whenever  any 
cause  shall  be  removed  from  any  state  court  into  any  district 
court  of  the  United  State:;,  and  the  district  court  shall  decide 
that  the  cause  was  improperly  removed,  and  order  the  same 
to  be  remanded  to  the  state  court  from  whence  it  came,  such 
remand  shall  be  immediately  carried  into  execution,  and  no 
appeal  or  writ  of  error  from  the  decision  of  the  district  court 
so  remanding  such  cause  shall  be  allowed:  Provided,  That  no 
case  arising  under  an  act  entitled,  "An  Act  Relating  to  the 
Liability  of  Common  Carriers  by  Railroad  to  Their  Employees 
in  Certain  Cases,"  approved  April  twenty-second,  nineteen 
hundred  and  eight,  or  any  amendment  thereto,  and  brought 
in  any  state  court  of  competent  jurisdiction,  shall  be  removed 
to  any  court  of  the  United  States."  (36  Stats.  1094.) 

"And  provided  further,  That  no  suit  brought  in  any  State 
court  of  competent  jurisdiction  against  a  railroad  company, 
or  other  corporation,  or  person,  engaged  in  and  carrying  on 
the  business  of  a  common  carrier,  to  recover  damages  for  de- 
lay, loss  of,  or  injury  to  property  received  for  transportation 
by  such  common  carrier  under  section  twenty  of  the  Act  to 
regulate  commerce,  approved  February  fourth,  eighteen  hun- 
dred and  eighty-seven,  as  amended  June  twenty-ninth,  nine- 
teen hundred  and  six,  April  thirteenth,  nineteen  hundred  and 
eight,  February  twenty-fifth,  nineteen  hundred  and  nine,  and 
June  eighteenth,  nineteen  hundred  and  ten,  shall  be  removed 
to  any  court  of  the  United  States  where  the  matter  in  contro- 
versy does  not  exceed,  exclusive  of  interest  and  costs,  the  sum 
or  value  of  $3,000."  (38  Stats.  278 ;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  16 ;  1  U.  S.  Comp.  Stats.  1916,  §  1010,  p.  841.) 

§192.    Class  One;  Removal  by  Defendant  or  Defendants  on 
Ground  of  Federal  Question. 

Cl.  1,§28,  Jud.  Code  (above  quoted  in  full).  "Any  suit 
of  a  civil  nature,  at  law  or  in  equity,  arising  under  the  Con- 
stitution or  laws  of  the  United  States,  or  treaties  made,  or 
which  shall  be  made,  under  their  authority,  of  which  the  dis- 
trict courts  of  the  United  States  are  given  original  jurisdic- 
tion by  this  title,  which  may  now  be  pending  or  which  may 


§§  193-194,  Ch.  9     MANUAL  OF  FEDERAL  PROCEDURE.  112 

hereafter  be  brought,  in  any  state  court,  may  be  removed  "by 
the  defendant  or  defendants  therein  to  the  district  court  of  the 
United  States  for  the  proper  district." 

§  193.  Class  Two ;  Removal  by  Nonresident  Defendant  or  De- 
fendants on  Ground  of  Diverse  Citizenship. 

Cl.  2,  §  28,  Jud.  Code  (quoted  in  full  supra,  §  191).  "  .  .  . 
Any  other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which 
the  district  courts  of  the  United  States  are  given  jurisdiction 
by  this  title,  and  which  are  now  pending  or  which  may  here- 
after be  brought,  in  any  state  court,  may  be  removed  into  the 
district  court  of  the  United  States  for  the  proper  district  by 
the  defendant  or  defendants  therein,  being  nonresidents  of 
that  state.  ..." 

§194.  Class  Three;  Removal  of  a  Separable  Controversy 
Wholly  Between  Citizens  of  Different  States.  Any  defendant  or 
defendants  with  a  separable  controversy  wholly  between  citizens  of 
different  states  may  remove  same  from  the  state  to  the  federal 
court,  in  cases  of  which  the  district  court  might  have  taken  juris- 
diction originally  on  the  ground  of  a  federal  question.  Likewise 
any  nonresident  defendant  or  defendants  may  remove  his  or  their 
separable  controversies  where  the  district  courts  might  have  taken 
jurisdiction  originally  on  account  of  diverse  citizenship.  (Aliens 
may  not  remove  a  separable  controversy.)  Both  classes  of  cases 
are  included  in  the  following  statutory  provision: 

Cl.  3,  §  28,  Jud.  Code  (quoted  in  full  supra,  §  191).  "... 
And  when  in  any  suit  mentioned  in  this  section  there  shall  be 
a  controversy  which  is  wholly  between  citizens  of  different 
states,  and  which  can  be  fully  determined  as  between  them, 
then  either  one  or  more  of  the  defendants  actually  interested 
in  such  controversy  may  remove  said  suit  into  the  district  court 
of  the  United  States  for  the  proper  district.  ..."  . 

To  constitute  a  separable  controversy,  the  case  must  be  one 
capable  of  separation  into  parts,  so  that  in  one  of  the  parts  a  con- 
troversy will  be  presented  with  citizens  of  one  or  more  states,  on 


113  REMOVAL  OF  CAUSES,  BTO.  Ch.  9,  §  194 

one  side,  and  citizens  of  other  states,  on  the  other,  which  can  be 
fully  determined  without  the  presence  of  the  other  parties  to  the 
suit  as  it  has  been  begun.1  It  must  appear  from  the  record  that, 
upon  the  allegation  of  plaintiff's  petition,  there  arises  in  the  cause 
a  controversy  capable  of  separation  from  the  other  issues  or  ques- 
tions presented  by  the  petition,  which,  when  separated,  would  be 
between  citizens  of  different  states.2  When  the  cause  of  action  is 
single,  the  fact  that  different  defendants  have  different  defenses 
does  not  create  separable  controversies.8 

In  Bates  v.  Carpentier,  98  Fed.  452,  the  court  said  "that,  in 
order  to  justify  a  removal  of  a  cause  on  the  ground  of  a  separate 
controversy  between  citizens  of  different  states,  the  whole  subject 
matter  of  the  suit  must  be  capable  of  being  finally  determined  as 
between  them,  and  complete  relief  afforded  as  to  the  separate 
causes  of  action,  without  the  presence  of  others,  originally  made 
parties  to  the  suit." 

In  Goldsmith  v.  Gilliland,  24  Fed.  154,  10  Sawy.  606,  it  was  de- 
cided that  a  suit  to  quiet  title  to  real  property  presented  a  subject 
matter  capable  of  such  separable  determination,  and, ' '  where  a  num- 
ber of  persons  claim  undivided  interests  in  real  property  adversely 
to  one  in  possession  of  the  same,  the  latter  may  maintain  a  suit  to 
quiet  his  title  against  any  or  all  of  such  claims,  and  neither  of  said 
persons  or  adverse  claimants  is  a  necessary  party  to  a  suit  for  that 
purpose  against  the  other." 

Where  an  action  is  brought  by  one  plaintiff  against  several,  de- 
fendants, not  because  they  claim  any  joint  interest  or  are  sub- 
ject to  any  joint  liability  in  respect  to  the  subject  matter  of  the 
action,  but  merely  for  convenience,  it  will  generally  be  capable 
of  resolution  into  separable  controversies  betjveen  the  plaintiff 
and  the  individual  defendants.4  A  bill  in  equity  to  quiet  title 

1  Fraser  y.  Jennison,  106  U.  8.  191,  27  L.  Ed.  131,  1  Sup.  Ct.  171;  Ayres 
v.  Wiswall,  112  U.  S.  187,  28  L.  Ed.  693,  5  Sup.  Ct.  90. 

2  Stanbrough  v.  Cook,  38  Fed.  369,  3  L.  R.  A.  400;   Barth   v.  Coler,  60 
Fed.  466,  9  C.  C.  A.  81;  Thurber  v.  Miller,  67  Fed.  371,  H  C.  C.  A.  432. 

3  Bobbins  v.  Ellenbogen,  71  Fed.  4,  18  C.  C.  A.  83. 

4  Bates  v.  Carpentier,  98  Fed.  452. 

Manual — 8 


§  194,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  114 

to  real  property,  brought  under  the  above  conditions,  has  been 
decided  to  include  a  separable  controversy  with  each  of  the  de- 
fendants, so  that,  if  one  of  them  is  a  nonresident,  he  may  remove 
the  suit.5  The  fact  that  separate  answers  are  filed,  which  raise 
separate  issues  in  defending  against  one  cause  of  action,  does  not 
create  separable  controversies,  within  the  meaning  of  that  term  as 
used  in  the  statute.  They  simply  present  different  questions  to 
be  settled  in  determining  the  rights  of  the  parties  in  rjespect  to 
the  one  cause  of  action  for  which  the  suit  was  brought.6 

In  Shainwald  v.  Lewis,  108  U.  S.  158,  27  L.  Ed.  691,  2  Sup.  Ct. 
385,  the  suit  was  brought  for  the  dissolution  and  settlement  of  an 
alleged  partnership.  The  court  said  there  was  no  separable  or  re- 
movable controversy.  "The  main  dispute,"  said  the  court,  "is 
about  the  existence  of  the  partnership.  All  the  other  questions  in 
the  case  are  dependent  on  that.  If  the  partnership  is  established, 
the  rights  of  the  defendants  are  to  be  settled  in  one  way ;  if  not,  in 
another.  There  is  no  controversy  in  the  case  which  now  can  be 
separated  from  that  about  the  partnership,  and  fully  determined 
by  itself." 

In  Fidelity  Ins.  etc.  Deposit  Co.  v.  Huntington,  117  U.  S.  280,  29 
L.  Ed.  898,  6  Sup.  Ct.  733,  the  suit  was  a  creditors'  bill  to  subject 
encumbered  property  to  the  payment  of  the  creditors'  judgment, 
by  sale  and  distribution  of  the  proceeds  among  lienholders  accord- 
ing to  their  priority.  One  lienholder  sought  to  remove  the  suit, 
as  to  him,  to  a  United  States  court,  upon  the  ground  that  as  to 
him  there  was  a  wholly  separable  controversy.  The  court  said: 
"There  is  but  a  single  cause  of  action,  and  that  is  the  equitable 
execution  of  a  judgment  against  the  property  of  the  judgment 
debtor.  This  cauge  of  action  is  not  divisible.  Each  of  the  defend- 

6  Field  v.  Lownsdale,  Deady,  288,  Fed.  Gas.  No.  4769;  Goodenough  v. 
Warren,  5  Sawy.  494,  Fed.  Cas.  No.  5534;  Stanbrough  v.  Cook,  38  Fed.  369, 
3  L.  B.  A.  400. 

6  Hyde  v.  Euble,  104  U.  S.  407,  26  L.  Ed.  823;  Winchester  v.  Loud,  108 
U.  S.  130,  27  L.  Ed.  677,  2  Sup.  Ct.  311;  Shainwald  v.  Lewis,  10S  U.  S. 
158,  27  L.  Ed.  691,  2  Sup.  Ct.  385;  Fidelity  Ins.  etc.  Deposit  Co.  v.  Hunt- 
ington, 117  U.  S.  280,  29  L.  Ed.  898,  6  Sup.  Ct.  733;  Graves  v.  Corbin,  132 
U.  S.  571,  33  L.  Ed.  462,  10  Sup  Ct.  196;  Torrence  v.  Shedd,  144  U.  S.  527, 
36  L.  Ed.  528,  12  Sup.  Ct.  726. 


115  REMOVAL  OP  CAUSES,  ETO.  Ch.  9,  §  194 

ants  may  have  a  separate  defense  to  the  action,  but  we  have  held 
many  times  that  separate  defenses  do  not  create  separate  contro- 
versies, within  the  meaning  of  the  removal  act." 

In  Graves  v.  Corbin,  132  U.  S.  571,  33  L.  Ed.  462,  10  Sup.  Ct.  196, 
the  suit  was  a  bill  in  equity  filed  in  a  state  court  by  a  judgment 
creditor  of  a  partnership  to  reach  its  entire  property.  Certain 
judgments  confessed  by  the  firm,  on  which  levies  had  been  made, 
were  attached  for  fraud.  One  of  the  judgment  creditors  removed 
the  cause  to  the  circuit  court  upon  the  ground  that  as  to  him  there 
was  a  separable  controversy.  After  a  final  decree  for  the  plaintiff, 
the  supreme  court,  on  an  appeal  therefrom,  held  that  the  case  was 
not  removable. 

A  suit  to  try  title  to  land  is  not  a  separable  controversy.7  An 
action  to  foreclose  a  mortgage  where  there  are  several  defendants 
is  not  a  separable  controversy.8 

The  rule  as  illustrated  by  these  cases  in  concise  form  is  that  if  a 
nonresident  party  has  an  interest  in  a  controversy  which  is  sepa- 
rate and  distinct,  and  does  not  necessarily  involve  the  interest  of 
the  other  defendants  in  the  issue,  or  the  other  party  on  the  same 
side,  he  can  remove  the  whole  case  into  the  federal  court.  On  the 
other  hand,  if  the  interests  of  the  other  party  are  so  identified  and 
so  mixed  up  that  they  must  and  should  be  decided  together,  and 
depend  on  the  finaj  decree,  which  must  depend  upon  ana  involve 
the  rights  of  both  parties,  then  it  cannot  be  removed  when  one  of 
the  parties  is  a  citizen  of  the  same  state  with  the  plaintiff  or  de- 
fendant.9 

Another  class  of  cases  in  which  the  question  of  separable  contro- 
versy arises  is  where  there  is  a  joint  and  several  liability.  Where  the 
plaintiff's  cause  of  action  is  joint  and  several,  he  has  the  option 

T  Lomax  v.  Foster  Lumber  Co.,  174  Fed.  959,  99  C.  C.  A.  463. 

8  Thompson  v.  Dixon,  28  Fed.  6. 

9  Wilson  v.  St.  Louis  etc.  Ry.  Co.,  22  Fed.  3;  affirmed,  St.  Louis  etc.  By. 
Co.  v.  Wilson,  114  U.  S.  60,  29  L.  Ed.  66,  5  Sup.  Ct.  738;  Central  B.  Co.  v. 
Mills,  113  U.  S.  249,  28  L.  Ed.  949,  5  Sup.  Ct.  456;  Louisville  &  N.  B.  Co. 
v.  Ide,  114  U.  S.  52,  29  L.  Ed.  63,  5  Sup.  Ct.  735;  Putnam  v.  Ingraham, 
114  IT.  S.  57,  29  L.  Ed,  65,  5  Swp.  Ct.  746;  Pirie  v.  Tvedt,  115  U.  S.  41,  29 
L.  Ed.  331,  5  Sup.  Ct.  1034,  1161;  Crump  v.  Thurbor,  115  U.  S.  56,  29  L.  Ed. 
328,  5  Sup.  Ct.  1154;  Price  v.  Foreman,  12  Fed.  801,  11  Biss.  328;  Mitchell 
v.  Tillotson,  12  Fed.  737,  11  Biss.  325;  Winchell  v.  Carle,  24  Fed.  865. 


§  194,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  116 

whether  to  sue  the  defendants  individually  or  to  join  them  in  one 
action.  If  he  elects  to  pursue  the  latter  course,  his  choice  determines 
the  character  of  the  suit,  and  no  one  of  the  defendants  can  treat  the 
suit  as  it  concerns  him  as  several,  for  the  purpose  of  a  removal  to 
the  federal  court.10 

In  Pirie  v/Tvedt,  115  TJ.  S.  41,  29  L.  Ed.  331,  5  "Sup.  Ct.  1034, 
1161,  the  court  said:  "The  cause  of  action  is  several  as  well  as  joint, 
and  the  plaintiffs  might  have  sued  each  defendant  separately,  or  all 
jointly.  It  was  for  the  plaintiffs  to  elect  which  course  to  pursue. 
They  did  elect  to  proceed  against  all  jointly,  and  to  this  defendants 
are  not  permitted  to  object.  The  fact  that  a  judgment  in  the  action 
may  be  rendered  against  a  part  of  the  defendants  only  does  not 
divide  a  joint  action  in  tort  into  separate  parts,  any  more  than  it  does 
a  joint  action  in  contract. ' '  A  defendant  has  no  right  to  say  that  an 
action  shall  be  several  which  the  plaintiff  elects  to  make  joint.  A 
separate  defense  may  defeat  a  joint  recovery,  but  it  cannot  deprive  a 
plaintiff  of  his  right  to  prosecute  his  own  suit  to  final  determina- 
tion in  his  own  way.  The  cause  of  action  is  the  subject  matter  of 
the  controversy;  and  that  is  for  all  purposes  of  the  suit,  what- 
ever the  plaintiff  declares  it  to  be  in  his  pleadings.11  And  if  a 
person  has  a  cause  of  action  on  which  he  may  properly  sue  either 
one  or  two  parties,  and  he  chooses  to  sue  both,  he  may  do  so  though 
his  motive  in  joining  them  is  to  prevent  a  removal  to  a  federal 
court.  That  is,  the  motive  is  not  considered.12 

In  the  case  of  Deere,  Wells  &  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co.,  85 
Fed.  876,  it  was  held  that  an  action  for  damages  against  a  railroad 
company  incorporated  by  another  state,  and  one  of  its  section  fore- 
men, who  is  a  citizen  of  the  same  state  with  plaintiff,  charging  them 

10  Brown  v.  Core  Bros.  &  Co.,  75  Fed.  689;  Boyd  v.  Gill,  19  Fed.  145,  21 
Blatchf.  543;  Western  Union  Tel.  Co.  v.  Brown,  32  Fed  337;  Mutual  Reserve 
Fund  Life  Assn.  v.  Farmer,  77  Fed.  929,  23  C.  C.  A.  574;  Louisville  &  N.  R. 
Co.  v.  Ide,  114  U.  S.  52,  29  L.  Ed.  63,  5  Sup.  Ct.  735;   Pirie  v.  Tvedt,   115 
U.  S.  41,  29  L.  Ed.  331,  5  Sup.  Ct.  1034,  1161;  Little  v.  Giles,  118  U.  S.  596 
30  L.  Ed.  269,  7  Sup.  Ct.  32;  Torrence  v.  Shedd,  144  U.  S.  527,  36  L.  Ed. 
528,  12  Sup.  Ct.  726. 

11  Louisville  &  N.  R.  Co.  v.  Ide,  supra;  Sloane   v.   Anderson,  117  U.  S. 
275,  29  L.  Ed.  899,  6  Sup.  Ct.  730;  Little  v.  Giles,  supra;  Thorn  Wire  Hedge 
Co.  v.  Fuller,  122  U.  S.  535,  30  L.  Ed.  1235,  7  Sup.  Ct.  1265. 

12  Deere,  Wells  &  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co.,  85  Fed.  876. 


117  REMOVAL  OP  CAUSES,   ETC.  Ch.  9,  §  195 

jointly  with  setting  out  a  fire  on  the  railroad  right  of  way  to  clear  it 
of  dry  grass  and  weeds,  and  negligently  permitting  it  to  spread  to 
plaintiff's  premises,  does  not  disclose  a  separable  controversy  which 
would  enable  the  railroad  company  to  remove  the  cause. 

In  one  action  against  a  railroad  company  for  negligence  in  han- 
dling a  train  and  against  a  Pullman  company  for  negligence  in  con- 
structing  the  berth  out  of  which  the  plaintiff  was  thrown,  the  court 
said:  "In  the  first  count  of  the  declaration  there  is  a  separate  and 
distinct  cause  of  action  stated  against  each  one  of  the  defendants,  and 
neither  one  of  the  defendants  could  be  held  liable  on  the  facts 
specifically  averred  against  the  other."  The  controversy  is  sepa- 
rable.13 

§  195.  Procedure  on  Removal — Class  One,  Two  and  Three — 
Petition  for  Removal  to  be  Filed  Before  Appearance  Day  in 
State  Court. 

Cl.  1,  §  29,  Jud.  Code  (Part  new,  part  re-enacting  25  Stats. 
433}.  "Whenever  any  party  entitled  to  remove  any  suit  men- 
tioned in  the  last  preceding  section,  except  suits  removable  on 
the  ground  of  prejudice  or  local  influence,  may  desire  to  re- 
move such  suit  from  a  state  court  to  the  district  court  of"  the 
United  States,  he  may  make  and  file  a  petition,  duly  verified, 
in  such  suit  in  such  state  court  at  the  time,  or  any  time  be- 
fore the  defendant  is  required  by  the  laws  of  the  state  or  the 
rule  of  the  state  court  in  which  such  suit  is  brought  to  answer 
or  plead  to  the  declaration  or  complaint  of  the  plaintiff,  for  the 
removal  of  such  suit  into  the  district  court  to  be  held  in  the 
district  where  such  suit  is  pending.  .  .  .  " 14  (36  Stats. 
1095 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  235 ;  1  U.  S.  Comp.  Stats. 
1916,  §  1011,  p.  954.) 

13  Batey  v.  Nashville  etc.  Ry.,  95  Fed.  368.  See,  also,  Dougherty  v. 
Yazoo  etc.  R.  Co.,  122  Fed.  205,  58  C.  C.  A.  651;  Fergason  v.  Chicago  etc. 
Ity.  Co.,  63  Fed.  177;  Hartshorn  v.  Atchison  etc.  R.  Co.,  77  Fed.  9;  Cokcr 
v.  Monaghan  Mills,  110  Fed.  803;  Lewis  v.  Cincinnati  etc.  Ry.  Co.,  192 
Fed.  654;  Veariel  v.  United  Engineering  etc.  Co.,  197  Fed.  877;  Gustafson 
v.  Chicago  etc.  Ry.  Co.,  12S  Fed.  85;  Yeates  v.  Illinois  Cent.  R.  Co.,  137 
Fed.  943;  Henry  v.  Illinois  Cent.  R.  Co.,  132  Fed.  715. 

u  Consent  of  counsel  does  not  give  district  court  jurisdiction,  In  re 
Foley,  76  Fed.  390.  But  facts  may  be  admitted  which  will  give  the  court 


§  195,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  118 

The  party  removing  is  also  required  to  file  a  bond  and  tran- 
script and  give  notice  as  set  out  in  the  following  sections : 

FORM  1. 

PETITION  FOR  REMOVAL  WHERE  CAUSE  INVOLVES  A  FEDERAL  QUESTION. 
In  the  District  Court  of,  etc., — State  of  Idaho. 
[Title  of  Cause.] 
To  the  Honorable  Judge  of  the  Court  Aforesaid: 

Your  petitioners,  defendants  in  the  above-entitled  action,  respectfully  repre- 
sent and  show  to  your»honorable  court: 

That  this  is  a  civil  action  brought  in  this  court  in  pursuance  of  an  adverse 
claim,  filed  in  the  United  States  land  office  at  Coeur  d'Alene  city,  state  of 
Idaho,  by  the  plaintiff  herein,  to  the  application  of  the  petitioners  for  a  United 
States  patent  to  a  certain  parcel  of  mineral  land,  situated  in  Shoshone  county, 
in  said  state.  That  said  action  is  in  pursuance  of  the  provisions  of  §  2326  of 
the  Revised  Statutes  of  the  United  States,  for  the  determination  of  contro- 
versies arising  between  claimants  to  the  right  of  possession  of  mineral  lands 
claimed  for  patent  by  the  parties  thereto. 

Your  petitioners  allege  that  they  are  each  citizens  of  the  United  States  and 
residents  and  citizens  of  the  county  of  Shoshone,  state  of  Idaho,  and  that  the 
Shoshone  Mining  Company  is  a  corporation  doing  business  and  claiming  to  be 
oiganized  and  existing  under  the  laws  of  the  state  of  Idaho. 

That  the  value  of  the  premises  described  in  the  complaint,  exclusive  of  in- 
terest and  costs,  exceeds  the  sum  of  three  thousand  ($3,000)  dollars. 

That  this  action  is  a  special  action  created  and  authorized  by  the  statutes 
of  the  .United  States,  to  facilitate  the  sale  and  disposition  of  the  public  min- 
eral lands  by  the  land  department,  and  involves  the  right  of  possession  con- 
ferred b>  said  statutes  on  claimants  of  the  same  who  desire  to  obtain  patents 
for  the  lands  claimed  by  them,  and  is  therefore  within  the  jurisdiction  of  the 
courts  of  the  United  States. 

That  this  action  involves  the  questions  of  what  is  a  lawful  location  of  a  min- 
eral claim;  what  discovery  of  mineral  i"S  required  to  support  such  location,  and 
what  rights  follow  such  location,  discovery,  and  attempted  appropriation,  and 
the  proper  construction  of  the  acts  of  Congress  relating  thereto. 

That  your  petitioners  are  claimants  of  the  title  to  the  premises  in  contro- 
versy and  the  plaintiff  is  an  adverse  claimant  thereto  under  the  statute. 

jurisdiction,  Pittsburg  etc.  R.  Co.  v.  Ramsey,  -22  Wall.  (U.  S.)  322,  22 
L.  Ed.  823;  Hyde  v.  Victoria  Land  Co.,  125  Fed.  970. 

In  general,  Fayette  Title  &  Trust  Co.  v.  Maryland,  P.  &  W.  V.  Tel.  & 
Tel.  Co.,  180  Fed.  928. 

Petition,  time  for  filing,  Lewis  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  192 
Fed.  654. 

Grounds  for  remand,  Western  Union  Tel.  Co.  v.  Louisville  &  N.  R.  Co. 
et  al.,  201  Fed.  932. 

Procedure,  Goins  v.  Southern  Pac.  Co.,  198  Fed.  432. 

Application,  notice,  Cayce  v.  Southern  R.  Co.?  195  Fed,  786, 


119  REMOVAL  OF  CAUSES,  ETC.  Ch.  9,  §  195 

Your  petitioners  herewith  present  a  good  and  sufficient  bond  as  provided  by 
the  statute  in  such  cases,  that  they  will  enter  in  such  district  court  for  the 
Northern  Division  of  the  District  of  Idaho,  within  thirty  days  from  the  filing 
of  this  petition  a  certified  copy  of  the  record  in  this  suit  and  for  the  payment 
of  all  costs  which  may  be  awarded  by  the  said  court,  if  the  said  district  court 
shall  hold  that  this  suit  was  wrongfully  or  improperly  removed  thereto.  (If 
special  bail  was  originally  requisite  in  said  cause  add  here,  "and  shall  then 
and  there  appear  and  enter  special  bail  in  said  suit.") 

Your  petitioners  therefore  pray  that  this  court  proceed  no  further  herein, 
except  to  make  the  order  of  removal  as  required  by  law  and  to  accept  the  bond 
presented  herewith,  and  direct  a  transcript  of  the  record  herein  to  be  made  for 
said  court  as  provided  by  law,  and  as  in  duty  bound  your  petitioners  will  ever 
pray. 


State  of ,     | 

;  3 


County  of 

VW  and  XY,  being  each  duly  sworn  according  to  law,  severally  depose  and 
say: 

I  am  one  of  the  petitioners  in  the  above-written  petition  and  have  read  said 
petition,  and  the  same  is  true  of  my  own  knowledge,  except  such  matters  as 
are  therein  stated  on  information  and  belief,  and  as  to  such  statements  I  be- 
lieve it  to  be  true. 

Subscribed  and  sworn  to,  etc. 

FORM  2. 

VERIFICATION  BY  ATTORNEY. 
State  of  — 
County  of 

VP,  being  first  duly  sworn,  on  oath  says  that  he  is  one  of  the  attorneys  of 
the  defendant  in  the  above-entitled  cause  and  of  the  petitioner  named  in  the 
foregoing  petition ;  that  he  has  read  the  same  and  believes  the  same  to  be  true, 
and  affiant  further  says  that  said  petitioner  is  absent  from  and  is  a  nonresi- 
dent of  the  county  of  ,  state  of  ,  in  which  said  suit  is  brought,  and 

that  affiant  makes  this  affidavit  for  the  reason  that  the  defendant  is  absent 

from  and  is  a  nonresident  of  the  said  county  of  ,  in  which  said  suit  is 

brought.  VP. 

Sworn,  etc. 

FORM  3. 

PETITION  FOR  REMOVAL — INVOLVING  FEDERAL  QTTESTION. 
In  the  Superior  Court,  etc. — State  of  California. 

[Title  of  Cause.] 

Now  at  the  time  of  filing  his  first  appearance  in  said  entitled  cause  comes 
t.ho  said  defendant  and  presents  to  this  honorable  court  his  petition  for  re- 


§  195,  Ch.  9  MANUAL  OF  FEDERAL  PROCEDURE.  120 

moval  of  this  suit  to  the  district  court  of  the  United  States,  in  and  for  the 
northern  district  of  California,  held  at  the  city  of  San  Francisco,  and  as 
grounds  therefor  respectfully  shows: 

First.  That  as  shown  by  plaintiff's  complaint  on  file  herein,  this  suit  arises 
under  the  laws  of  the  United  States  providing  for  the  disposition  and  sale  of 
the  public  gold-bearing  mineral  lands. 

Second.  That  each  of  the  plaintiffs  is  and  for  more  than  five  years  last  past 
has  been  a  citizen  of  the  state  of  California. 

Third.  That  the  defendant  is  and  for  more  than  five  years  last  past  has 
been  a  citizen  of  Minnesota. 

Fourth.     That  the  lands  in  controversy  in  this  suit  are  of  the  value  of  $3,000. 

[Conclusion  as  in  Form  1.] 

[Verification  as  in  Form  1  or  2.] 

FORM  4. 
PETITION  FOE  REMOVAL  INVOLVING  FEDERAL  QUESTION. 

In  the  Superior  Court  of,  etc. — State  of  California. 
[Title  of  Cause.] 

Your  petitioners  respectfully  show  that  they  are  the  defendants  in  this  ac- 
tion, which  is  of  a  civil  nature,  in  equity,  and  that  the  matter  or  amount  in 
dispute  exceeds  the  sum  of  $3,000,  -exclusive  of  interest  and  costs. 

That  said  action  is  in  equity,  of  a  civil  nature,  and  arises  under  the  constitu- 
tion and  laws  of  the  United  States. 

That  the  defendants,  at  and  about  the  time  of  the  commencement  of  the 
above-entitled  action,  were  in  the  possession  and  occupancy  of  the  mining  ground 
known  as  the  St.  Lawrence  Mine,  near  Moore's  Flat,  in  Nevada  county,  state 
of  California,  and  were  engaged  in  working  said  property  by  the  hydraulic 
process  under  a  license  or  permit  duly  and  regularly  made  and  issued  to  the 
defendant  Ah  Wing  as  the  owner  of  the  property  by  the  commissioners 
appointed  and  acting  under  and  in  pursuance  of  an  act  of  the  Congress  of  the 
United  States,  approved  March  3,  1893,  entitled,  "An  Act  to  Create  the  Cali- 
fornia Debris  Commission,  and  to  Regulate  Hydraulic  Mining  in  the  State  of 
California." 

That  said  mining  was  carried  on  by  said  defendants  in  conformity  to  the 
license  or  permit  aforesaid,  and  the  rules,  regulations,  and  requirements  of  said 
commission,  and  the  provisions  of  said  act  of  Congress. 

That  said  action  is  brought  to  restrain  and  enjoin  the  defendants  and  each 
and  all  of  them  from  working  said  mine  by  the  hydraulic  process;  that  the 
question  of  the  force  and  effect  of  the  said  act  of  Congress  and  of  the  power 
and  authority  of  said  debris  commission  under  said  act  of  Congress,  and  of 
the  legal  effect  of  the  license  or  permit  granted  by  said  commission  to  the  de- 
fendant Ah  Wing,  and  other  acts  performed  by  said  commission  relating  to 
the  subject  matter  of  this  action,  are  involved  in  said  action ;  that  said  defense 
rests  mainly  upon  said  act  of  Congress  and  upon  the  power  and  authority  of 


121  REMOVAL  OP  CAUSES,  ETC.  Ch.  9,  §  195 

the  said  commission  thereunder,  as  will  more  fully  appear  from  the  complaint 
on  file,  and  from  the  answer  of  the  defendants  thereto,  filed  herewith,  to  which 
reference  is  hereby  made. 

[Conclusion  as  in  Form  1.] 

[Verification  as  in  Form  1  or  2.] 

FORM  5. 
PETITION  FOE  REMOVAL — CITIZENS  or  DIFFERENT  STATIS. 

(Nonresident  Plaintiff  v.  Nonresident  Defendant.) 
In  the  Superior  Court  of,  etc. — State  of  Washington. 
[Title  of  Cause.] 
To  the  Honorable  Judges  of  the  Above-entitled  Court: 

Comes  now  your  petitioner,  — —  the  above-named  defendant,  by  his  attorneys, 

and  respectfully  represents  to  this  honorable  court: 

1.  That  on  the day  of , ,  the  above-named  plaintiff  filed  a  com- 
plaint in  the  superior  court  of  King  county,  state  of  Washington,  praying  for 
a  judgment  against  the  defendant  upon  a  promissory  note  for  the  sum  of  three 

thousand  ($3,000)  dollars,  with  interest  at  10  per  cent  per  annum  from  , 

with  costs,  and  attorneys'  fees  of  5  per  cent  of  the  amount  due. 
-  2.  That  on  said  date,  and  immediately  after  filing  said  complaint,  the  said 
plaintiff  caused  to  be  sued  out  a  writ  of  attachment,  and  caused  said  writ  of 
attachment  to  be  delivered  to  the  sheriff,  who  thereupon  levied  upon  property 
of  your  petitioner  in  King  county,  Washington. 

3.  Your  petitioner  further  avers  that  the  time  has  not  elapsed  wherein  your 
petitioner  is  allowed  under  the  practice  and  laws  of  the  state  of  Washington 
and  the  rules  of  said  court  to  appear,  plead,  demur,  or  answer  said  complaint. 

4.  Your  petitioner  further  avers  that  at  the  time  of  the  commencement  of 
said  suit,  and  ever  since  then,  and  at  the  present  time  the  plaintiff  in  said  ac- 
tion, the  Harrisburg  Trust  Company,  was  and  is  a  corporation  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  commonwealth  of  Pennsylvania, 
and  was  a  citizen  and  resident  of  the  state  of  Pennsylvania,  having  its  prin- 
cipal place  of  business  at  the  city  of  Harrisburg  in  said  state,  and  the  defend- 
ant, at  the  time  of  the  commencement  of  said  suit  was,  and  ever  since  has  been, 
and  still  is,  a  citizen  of  the  state  of  Wisconsin  and  a  resident  thereof,  residing 
at  the  city  of  Oconomowoc  in  said  state  of  Wisconsin. 

5.  Your  petitioner  further  avers  that  this  is  a  controversy  between  citizens 
of  different  states  and  more  than  three  thousand  ($3,000)  dollars,  exclusive  of 
interest  and  costs,  is  involved  therein. 

[Conclusion  as  in  Form  1.] 
[Verification  as  in  Form  1  or  2.] 


§  195,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  122 

FORM  6. 
PETITION  FOE  REMOVAL — CITIZENS  OP  DIFFERENT  STATES. 

(Resident  Plaintiff  v.  Nonresident  Defendant.) 
"  In  the  Superior  Court  of,  etc. — State  of  California. 
[Title  of  Cause.] 
To  the  Honorable  Superior  Court  of  Humboldt  County,  State  of  California. 

The  petition  of and defendants  in  the  above-entitled  action,  re- 
spectfully shows  to  this  honorable  court. 

That  your  petitioners  are  defendants  in  the  above-entitled  action. 

That  said  action  has  been  commenced  against  them  in  said  court  by  said 
plaintiff,  and  that  said  action  is  of  a  civil  nature. 

That  said  plaintiff,  in  his  complaint  herein,  claims  in  substance  that  on  the 

day  of , ,  your  petitioner  entered  into  a  contract  in  writing  with 

plaintiff  for  the  purchase  and  acquisition  of  certain  timber  lands  situate  in 
said  county  and  state,  and  that  in  such  purchase  and  acquisition  said  plaintiff 
rendered  certain  services  for  defendants  upon  an  agreed  price,  amounting  to 
the  sum  of  $5,479.46,  for  which  he  demands  judgment  against  said  defendants. 

That  your  petitioners  dispute  said  claim  and  deny  all  liability  under  the  con- 
tract set  out  in  the  complaint  herein. 

That  the  matter  in  dispute  in  this  action  exceeds  the  sum  of  three  thousand 
dollars,  exclusive  of  interest  and  costs. 

That  the  controversy  in  this  action  and  every  issue  of  fact  and  law  therein 
is  wholly  between  citizens  of  different  states,  and  which  can  be  fully  deter- 
mined as  between  them — that  is  to  say,  the  plaintiff, ,  is  now,  and  was  at 

the  time  of  the  filing  of  the  complaint  in  this  action,  a  citizen  and  resident  of 

the  state  of  California,  and  the  defendants, and ,  were  then  and  still 

are  citizens  and  residents  of  the  state  of  New  York. 

That  the  time  for  your  petitioners,  as  defendants  in  this  action,  to  answer 
or  plead  to  the  complaint  in  said  action  has  not  yet  expired  and  will  not  so  ex- 
pire until  the  day  of  ,  ,  and  your  petitioners  have  not  yet  filed 

any  pleading  or  in  any  way  appeared  therein. 

[Conclusion  as  in  Form  1.] 

[Verification  as  in  Form  1  or  2.] 

FORM  7. 

PETITION  FOE  REMOVAL^ 
(Resident  Plaintiff  v.  Nonresident  Defendant  and  Resident  Defendant  Who 

has  Disclaimed  All  Interest  in  the  Action.) 
In  the  Superior  Court  of,  etc. — State  of  California. 
[Title  of  Cause.] 

The  petition  of ,  one  of  the  above-named  defendants,  shows  to  the  court 

as  follows: 

That  the  above  suit  was  begun  against  your  petitioner, and ,  in  the 

superior  court  of  the  city  and  county  of  San  Francisco,  state  of  California,  by 


123  REMOVAL  OP  CAUSES,  ETC.  Ch.  9,  §  195 

the  filing  of  a  complaint  and  the  service  of  a  summons  and  copy  of  the  com- 
plaint therein,  on  the day  of , .  That  the  defendant, ,  filed 

his  answer  in  said  cause  on  the day  of , .  That  your  petitioner 

has  not  yet  filed  his  answer;  but  that,  as  to  your  petitioner,  said  cause  is  now 
pending  on  his  motion  to  strike  out  portions  of  the  complaint  herein;  that 
said  cause  has  not  been  tried. 

That  at  the  time  said  suit  was  begun,  and  at  the  present  time,  the  plaintiff 
was  and  is  a  citizen  and  resident  of  the  state  of  California,  and  the  defendant, 

,  was  and  is  a  citizen  and  resident  of  the  state  of  Nevada;  and  that  the 

said  defendant, ,  was  and  is  a  citizen  and  resident  of  the  state  of  California. 

That  the  matters  in  dispute  in  said  suit,  and  for  which  said  suit  is  brought, 
exceed  the  sum  of  three  thousand  dollars,  exclusive  of  costs.  That  the  defend- 
ant,   ,  has  no  interest  in  said  action  or  the  matters  in  dispute  therein,  or 

in  any  of  the  property  therein  mentioned,  and  has  filed  his  answer  disclaiming 
any  interest  of  any  name  or  nature  in  the  same,  or  in  the  property  described 
therein,  and  the  same  is  wholly  and  solely  the  property  of  the  defendant, . 

[Conclusion  as  in  Form  1.] 

[Verification  as  in  Form  1  or  2.] 

FORM  8. 
PETITION  FOR  REMOVAL* 

(Citizens  v.  Aliens.) 
In  the  Superior  Court  of,  etc. — State  of  California. 

[Title  of  Cause.] 

The  petition  of ,  one  of  the  above-named  defendants,  shows  to  the  court 

as  follows: 

That  the  above  suit  was  begun  against  your  petitioners,  ,  and  ,  in 

the  superior  court  of  the  county  of  Marin,  state  of  California,  by  the  filing  of 
a  complaint,  and  the  service  of  a  summons  and  a  copy  of  the  complaint  herein 
on  the  defendants. 

That  your  petitioners  have  not  yet  filed  their  answer,  but  that,  as  to  your 

petitioners,  said  cause  is  now  pending,  and  that  said  cause  has  not  been  tried. 

•  That  at  the  time  said  suit  was  begun,  and  at  the  present  time,  the  plaintiffs 

are  citizens  and  residents  of  the  state  of  California,  and  the  defendants  are 

aliens  and  subjects  of  the  United  Kingdom  of  Great  Britain  and  Ireland;  the 

said  defendant,  ,  being  a  resident  of  the  county  of  Marin,  and  the  said 

residents  of  the  county  of  Alameda,  state  of  California. 

That  the  matters  in  dispute  in  said  suit,  and  for  which  said  suit  is  brought, 
exceed  the  sum  of  three  thousand  dollars,  exclusive  of  interest  and  costs. 

[Conclusion  as  in  Form  1.] 

[Verification  as  in  Form  1  or  2.] 


§  195,  Ch.  9  MANUAL  OF  FEDERAL  PROCEDURE.  124 

FORM  9. 
PETITION  FOR  REMOVAL  FROM  STATE  COURT  TO  DISTRICT  COURT. 

(Resident  Plaintiff  v.  Alien  Defendant.) 
In  the  Superior  Court  of,  etc. — State  of  Washington. 
[Title  of  Cause.] 
To  the  Honorable,  the  Superior  Court  of  the  State  of  Washington,  in  and 

for  the  County  of  Jefferson,  and  to  the  Honorable Judge  Thereof: 

The  petition  of  ,  the  defendant  in  the  above-entitled  action,  respect- 
fully shows: 

I. 

That  said  action  is  a  suit  of  a  civil  nature  at  common  law,  of  which  the 
district  court  of  the  United  States  has  original  jurisdiction,  and  has  been 
brought  and  is  now  pending  in  this  honorable  court,  and  has  not  yet  been 
tried,  nor  has  the  time  at  or  before  which  the  defendant,  this  petitioner, 
is  required,  by  laws  of  the  state  of  Washington,  or  any  rules  or  rule  of  this 
honorable  court,  to  answer  or  plead  to  the  complaint  of  plaintiff  elapsed, 
and  the  matter  in  dispute  in  said  suit  exceeds,  exclusive  of  interest  and 
costs,  the  sum  and  value  of  three  thousand  dollars,  and  said  suit  is  a  con- 
troversy between  the  plaintiff,  who,  at  the  time  of  the  commencement  of 
said  suit,  was  and  now  is  a  citizen  of  the  state  of  Washington,  and  this  de- 
fendant, who  is  not  a  citizen  of  the  state  of  Washington,  but  was,  at  the 
time  of  the  commencement  of  said  suit,  and  now  is,  a  foreign  citizen  and 
subject;  that  is  to  say,  a  citizen  of  the  British  Empire  and  a  subject  of  her 
Britannic  Majesty,  Queen  Victoria,  and  that  there  are  no  other  parties  to 
said  suit. 

n. 

That  by  reason  of  the  premises  this  petitioner,  said  defendant,  desires  and 
is  entitled  to  have  said  suit  removed  from  said  superior  court  of  the  state 
of  Washington  into  the  district  court  of  the  United  States  for  the  proper 
district  at  this  time. 

in. 

That  the  district  court  of  the  United  States  for  the  ninth  circuit,  and.  in 
and  for  the  northern  division  of  the  district  of  Washington,  holding  terms 
at  the  city  of  Seattle,  is  the  district  court  of  the  United  Stafes  for  the  proper 
district,  being  the  district  court  of  the  United  States  held  in  the  district 
where  said  suit  is  pending. 

[Conclusion  as  in  Form  1.] 

[Verification  as  in  Form  1  or  2.] 


125  REMOVAL  OF  CAUSES,  ETC.  Ch.  9,  §  195 

FORM  10. 

PETITION  FOR  REMOVAL — SEPARABLE  CONTROVERSY. 
In  the  Superior  Court  of,  etc. — State  of  California. 
[Title  of  Cause.] 

To  the  Honorable,  the  Superior  Court  of  the  City  and  County  of  San  Fran- 
cisco, State  of  California: 

The  petition  of ,  one  of  the  above-named  defendants,  shows  as  follows: 

Your  petitioner  shows  to  this  honorable  court  that  he  is  one  of  the  defend- 
ants in  this  suit,  which  is  of  a  civil  nature,  and  that  the  matter  or  amount  in 
dispute  in  this  cause  exceeds  the  sum  or  value  of  three  thousand  dollars,  ex- 
clusive of  interest  and  costs. 

That  the  controversy  herein  is  between  citizens  of  a  state  and  of  a  foreign 

state;  that  the  plaintiff,  ,  was  at  the  time  of  the  commencement  of  this 

suit,  and  still  is,  a  citizen  of  the  state  of  California,  residing  in  the  county  of 

Sonoma,  in  said  state,  and  that  your  petitioner,  ,  was,  at  the  time  of  the 

commencement  of  this  suit,  and  for  seventeen  years  last  past  has  been,  a  resi- 
dent of  the  city  of  Denver,  in  the  state  of  Colorado,  and  that  your  petitioner 
desires  to  remove  this  suit  before  the  trial  thereof  into  the  next  district  court 
of  the  United  States  to  be  held  in  the northern  district  of  California. 

Your  petitioner  further  shows  that  the  causes  of  action  that  the  plaintiff 

herein  has  against  the  two  defendants  for  damages  for  the  death  of  are 

separable  controversies. 

That  on  the  day  of  ,  ,  your  petitioner  was  engaged  as  an  in- 
dependent contractor  to  do  certain  work  in  the  construction  of  a  building  on 
the  lot  of  land  situate  at  the  southwest  corner  of  Market  and  Third  streets; 
that  in  the  prosecution  of  said  work  it  became  and  was  necessary  to  place  a 
certain  piece  of  timber  in  an  upright  position,  so  that  one  end  of  said  timber 
was  against  the  under  part  of  said  cornice,  and  the  other  end  was  on  the  roof 
of  the  building  on  the  lot  next  adjoining  on  the  west.  That  the  defendant, 
,  is  the  owner  of  said  last-mentioned  lot.  That  it  is  claimed  by  the  plain- 
tiff that  the  aforesaid  piece  of  timber  fell  from  its  place  and  struck  the  said 

,  who  was  on  the  street  beneath,  and  so  injured  him  that  he  subsequently 

died. 

That  the  cause  of  action  that  the  plaintiff, has,  if  she  has  any,  against 

your  petitioner,  is  for  his  negligence,  through  his  agents  and  servants,  in  im- 
properly placing  the  said  piece  of  timber.  That  the  cause  of  action  that  plain- 
tiff,   ,  has,  if  she  has  any,  against  the  defendant,  ,  is  for  maintaining 

a  nuisance  upon  his  said  premises.  That  therefore  the  said  two  causes  of  ac- 
tion are  separable. 

[Conclusion  as  in  Form  1.] 

[Verification  as  in  Form  1  or  2.] 


§  196,  Ch.  9  MANUAL  OF  FEDERAL  PROCEDURE.  126 

FORM  11. 

PETITION  FOR  REMOVAL, — SEPARABLE  CONTKOVERSIES  AFTER  DISMISSAL  OF  SUIT 
AGAINST  OTHER  DEFENDANTS. 

[Title  of  Court  and  Cause.] 

To  the  Honorable,  the Court  of  State  of . 

JTour  petitioner  respectfully  shows  that  it  is  one  of  the  defendants  in  the 
above-entitled  suit,  and  that  the  matter  and  amount  in  dispute  in  said  suit  ex- 
ceeds, exclusive  of  interest  and  costs,  the  sum  or  value  of  three  thousand  dollars. 

That  there  is  in  said  suit  a  controversy  which  is  wholly  between  citizens  of 
different  states,  and  which  can  be  fully  determined  as  between  them,  to  wit, 

between  your  petitioner,  the  Ry.  Co.,  defendant  in  said  suit,  who  avers 

that  it  was  at  the  commencement  of  this  suit,  and  still  is,  a  corporation  organ- 
ized under  the  laws  of  the  states  of  Virginia  and  West  Virginia,  and  of  no 
other  state,  and  that  it  was  then  and  still  is  a  citizen  and  resident  of  the  states 
of  Virginia  and  West  Virginia,  and  of  no  other  state,  and  that  it  was  not  then, 
and  is  not  now,  a  resident  or  citizen  of  the  state  of  Kentucky — and  the  plain- 
tiff,   ,  who  was,  at  the  commencement  of  this  suit,  and  still  is,  a  resident 

and  citizen  of  the  state  of  Kentucky.  Your  petitioner  further  says  that  the 
said  defendants,  ,  and  ,  are  all  and  every  of  them,  citizens  and  resi- 
dents of  the  state  of  Kentucky,  and  that  they  are  fraudulently  and  improperly 
joined  as  parties  defendant  for  the  sole  purpose  of  defeating  the  right  of  peti- 
tioner to  remove  to  the  United  States  circuit  court. 

That  because  of  said  joinder  of  said  and  ,  being  citizens  of  the 

same  state  as  said  plaintiff,  said  cause  was  remanded  to  the  state  court. 

Your  petitioner  says  that  the  said  suit  as  to  said  and  was,  on  the 

day  of ,  —  —  dismissed,  that  the  said  cause  is  now,  for  the  first  time, 

pending  as  to  the  said alone. 

[Conclusion  as  in  Form  1.] 

[Verification  as  in  Form  1  or  2.] 

§  196.    Bond  on  Removal  in  Classes  One,  Two  and  Three. 

Part  §  29,  Jud.  Code.  ' '  Whenever  any  parties  entitled  to 
remove  any  suit  mentioned  in  the  preceding  section,  except 
suits  removable  on  the  ground  of  prejudice  or  local  influence, 
.  .  .  (he)  shall  make  and  file  therewith  a  bond,  with  good  and 
sufficient  surety,  for  his  or  their  entering  in  such  district 
court,  within  thirty  days  from  the  date  of  filing  said  petition, 
a  certified  copy  of  the  record  in  such  suit,  and  for  paying  all 
costs  that  may  be  awarded  by  the  said  district  court  if  said 
district  court  shall  hold  that  such  suit  was  wrongfully  or  im- 
properly removed  thereto,  and  also  for  their  appearing  and 
entering  special  bail  in  such  suit  if  special  bail  was  originally 
requisite  therein."  (See  §  195,  supra.') 


127  REMOVAL  OP  CAUSES,  ETC.  Ch.  9,  §  196 

FORM  12. 
BOND  ON  REMOVAL. 
[Title  of  State  Court  and  Cause.] 

Know  all  men  by  these  presents,  that  we,  XY  and  Z,  as  principals,  and 
M  and  N,  as  sureties,  residents,  and  -  of  the  county  of  -  ,  state  of 

-  ,  are  held  and  firmly  bound  unto  AB,  plaintiff  in  the  above-entitled  cause, 
his  successors  and  assigns,  in  the  sum  of  five  hundred  ($500)   dollars,  lawful 
money  of  the  United  States  of  America,  for  the  payment  of  which  well  and 
truly  to  be  made,  we  and  each  of  us  bind  ourselves,  and  each  of  us,  our  heirs, 
executors,  and  administrators,  jointly  and  severally,  by  these  presents. 

The  conditions  of  this  obligation  are  such  that  : 

Whereas,  the  said  XY  and  Z  have  applied  by  petition  to  the  (superior)  court 
of  the  state  of  -  ,  in  and  for  the  county  of  -  ,  for  the  removal  of  a  cer- 
tain cause  therein  pending  wherein  AB  is  plaintiff  and  the  said  XY  and  Z  are 
defendants,  to  the  district  court  of  the  United  States  for  the  district  of  -  , 

-  division,  for  further  proceedings  on  grounds  in  the  said  petition  set  forth, 
and  that  all  further  proceedings  in  said  action  in  said  -  court  be  stayed. 

Now,  therefore,  if  your  petitioners,  the  said  XY  and  Z  shall  enter  in  said 
district  court  of  the  United  States  for  the  district  of  -  ,  aforesaid,  within 
thirty  days  from  the  date  of  filing  said  petition,  a  certified  copy  of  the  record 
in  such  suit,  and  shall  pay  or  cause  to  be  paid  all  costs  that  may  be  awarded 
therein  by  said  district  court  of  the  United  States  if  said  court  shall  hold  that 
said  suit  was  wrongfully  or  improperly  removed  thereto,  [Note.  —  If  special 
bail  was  originally  requisite  in  said  cause  add  here:  "And  shall  then  and  there 
appear  and  enter  special  bail  in  said  suit"],  then  this  obligation  shall  be  voidj 
otherwise  shall  remain  in  full  force  and  effect. 

Signed,  subscribed  and  sworn,  etc. 

Sureties'  justification. 


f  -  ,    1 
of  -  >  ) 


State  of 
County 

M  and  N,  the  sureties  named  in  the  foregoing  bond,  being  first  duly  sworn, 
each  for  himself,  deposes  and  says  as  follows:  I  am  the  same  person  whose 
name  is  subscribed  to  the  'foregoing  bond,  and  I  state  I  am  a  householder  and 
resident  of  the  county  and  state  aforesaid,  and  that  I  am  worth  the  sum  of  five 
hundred  ($500)  dollars  named  therein  as  the  penalty  thereof,  over  and  above 
all  my  just  debts  and  liabilities,  exclusive  of  property  which  is  exempt  from 
execution. 

M. 

N. 
Subscribed  and  sworn,  etc. 


§§  197-198,  Ch.  9     MANUAL  OP  FEDERAL  PROCEDURE.  128 

§  197.    Duty  of  State  Court  in  Such  Cases. 

Part  §25,  Jud.  Code.  "  ...  It  shall  then  be  the  duty  of 
the  state  court  to  accept  said  petition  and  bonu  and  proceed 
no  further  in  such  suit." 

§  198.    Notice  to  Adverse  Party  in  Such  Cases. 

Part  §29,  Jud.  Code.  "...  Written  notice  of  said  peti- 
tion and  bond  for  removal  shall  be  given  the  adverse  party  or 
parties  prior  to  filing  the  same.?' 

FORM  13. 

NOTICE  OF  PETITION  AND  BOND  FOE  ORDER  OF  REMOVAL* 
[Title  of  State  Court  and  Cause.] 
To  Messrs.  P  and  Q,  Attorneys  for  Plaintiff: 

Please  take  notice  that  the  defendants  will  on  ,  the  day  of  , 

,  at  10  o'clock,  A.  M.,  or  as  soon  thereafter  as  counsel  can  be  heard,  move 

the  court  for  an  order  removing  said  cause  to  the  district  court  of  the  United 

States  for  the district  of  • in  accordance  with  the  petition  and  bond 

of  defendants,  copies  of  which  are  hereto  attached. 

Dated  the day  of , . 

•,  Attorney  for  Defendants. 

FORM  14. 
ORDER  or  REMOVAL. 
[Title  of  State  Court  and  Cause.] 

This  cause  coming  on  for  hearing  upon  petition  and  bond  of  the  defendant 
herein  for  an  order  transferring  this  cause  to  the  United  States  district  court 

for  the district  of ,  division,  and  it  appearing  to  the  court  that 

the  defendant  has  filed  his  petition  for  such  removal  in  due  form  of  law,  and 
that  the  defendant  has  filed  his  bond  duly  conditioned,  with  good  and  sufficient 
sureties,  as  provided  by  law,  and  that  defendant  has  given  plaintiff  due  and 
legal  notice  thereof,  and  it  appearing  to  the  court  'that  this  is  a  proper  cause 
for  removal  to  said  district  court. 

Now,  therefore,  said  petition  and  bond  are  hereby  accepted  and  it  is  hereby 
ordered  and  adjudged  that  this  cause  be  and  it  hereby  is  removed  to  the  United 

States  district  court  for  the district  of ,  division,  and  the  clerk 

is  hereby  directed  to  make  up  the  record  in  said  cause  for  transmission  to  said 
court  forthwith. 

Done  in  open  court,  this day  of , . 

,  Judge. 


129  REMOVAL  OF  CAUSES,  ETC.  Cll.  9,  §  199 

FORM  15. 

CLERK'S  CERTIFICATE  WITH  RECORD. 
[Title  of  State  Court  and  Cause.] 

State  of , 

County  of  — — 

I, ,  county  clerk  of  said  county  of ,  and  ex-officio  clerk  of  the  su- 
perior court  in  and  for  said  county,  hereby  certify  the  above  and  foregoing  to 
be  a  full,  true,  and  correct  copy  of  the  record,  and  the  whole  thereof,  in  the 
above-entitled  suit  heretofore  pending  in  said  superior  court,  being  the  suit 
No.  ,  wherein  AB  is  plaintiff  and  XY  are  defendants,  said  record  consist- 
ing of  the  complaint,  filed  by  said  plaintiff  in  said  suit  on  the  day  of 

, ;  the  summons  and  return  thereon,  filed  in  said  suit  on  the day 

of ,  [here  add  any  other  proceedings  that  may  have  been  filed]  the 

petition  for  removal  of  said  suit  to  the  United  States  district  court,  filed  by 

said  defendant  in  said  suit  on  the day  of ,  the  bond  for  removal,  the 

notice  of  petition  and  bond,  and  the  order  of  removal  of  said  suit  to  said 

United  States  district  court,  entered  of  record  in  said  suit  on  the  day  of 

, ,  all  as  appears  on  file  and  of  record  in  my  office. 

In  testimony,  etc. 

[Seal]  ,  Clerk. 

FORM  16. 
NOTICE  OP  REMOVAT/.. 

In  the  District  Court  of,  etc.,  of  the  United  States. 
[Title  of  Cause.] 

You  and  each  of  you  will  please  take  notice  that  on  the day  of  , 

,  the  above-entitled  cause  was  duly  transferred  from  the court  of  the 

county  of ,  state  of ,  to  the  district  court  of  the  United  States, 

in  and  for  the district  of ,  and  that  the  record  in  said  cause  has  this 

clay  been  duly  filed  in  the  said  United  States  district  court. 

Dated , . 

P&Q, 
Attorneys  for  Defendant. 

To  the  above-named  plaintiff  and  to  Messrs.  -    -  and ,  Attorneys  for 

Plaintiff. 

§  199.  Procedure  After  Removal  in  Classes  One,  Two  and 
Three. 

Part  §29,  Jud.  Code.  "  .  .  .  The  said  copy  being  entered 
within  said  thirty  days  as  aforesaid  in  said  district  court  of 
the  United  States,  the  parties  so  removing  the  said  cause  shall, 

Manual — 9 


§  200,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  130 

within  thirty  days  thereafter,"  plead,  answer,  or  demur  to  the 
declaration  or  complaint  in  said  cause,  and  the  cause  shall  then 
proceed  in  the  same  manner  as  if  it  had  been  originally  com- 
menced in  the  said  district  court."  (See  §  195  above.) 

§  200.    Class  Four ;  Removal  on  Ground  of  Prejudice. 

Part  §  28,  Jud.  Code.  "...  And  where  a  suit  is  now 
pending,  or  may  hereafter  be  brought,  in  any  state  court,  in 
which  there  is  a  controversy  between  a  citizen  of  the  state  in 
which  the  suit  is  brought  and  a  citizen  of  another  state,  any 
defendant,  being  such  citizen  of  another  state,  may  remove 
such  suit  into  the  district  court  of  the  United  States  for  the 
proper  district,  at  any  time  before  the  trial  thereof,  when  it 
shall  be  made  to  appear  to  said  district  court  that  from  preju- 
dice or  local  influence  he  will  not  be  able  to  obtain  justice  in 
such  state  court,  or  in  any  other  state  court  to  which  the  said 
defendant  may,  under  the  laws  of  the  state,  have  the  right,  on 
account  of  such  prejudice  or  local  influence,  to  remove  said 
cause.  ..."  (See  §  191  above.) 

The  petition  or  affidavit  in  this  class  of  cases  is  addressed  to 
the  federal  district  court,  instead  of  the  state  court,  as  in  classes 
one,  two  and  three  discussed  above.  No  notice  of  the  filing  of 
the  petition  seems  to  be  required,  nor  need  a  bond  be  given 
although  both  notice  and  bond  are  the  usual  practice.  The  dis- 
trict court  enters  an  order  of  removal,  which  order  should  be 
filed  in  the  state  court  (Form  14,  above,  may  be  used  by  entitling 
in  the  federal  court),  and  a  transcript  of  the  record  obtained 
from  the  state  court  (Form  19  gives  the  writ  to  obtain  same) 
should  be  filed  in  the  federal  court.15 

Removal  in  these  cases,  instead  of  being  required  before  the 
defendant  is  obligated  under  state  practice  to  plead,  may  be  "at 
any  time  before  trial  thereof,"  to  wit,  "before  or  at  the  term  at 
which  the  cause  could  first  be  tried  and  before  trial  thereof."  16 

15  Pennsylvania  Co.  v.  Bender,  148  U.  S.  255,  37  L  Ed.  441,  13  Sup.  Ct. 
591. 

i«  McDonnell  v.  Jordan,  178  U.  S.  229,  44  L.  Ed.  1048,  20  Sup.  Ct.  886. 


131  REMOVAL  OF  CAUSES,  ETC.  Ch.  9,  §  200 

FORM  17. 
PETITION  FOR  REMOVAL  ON  GROUND  or  PREJUDICE  OR  LOCAL  INFLUENCE. 

In  the  District  Court  of  the  United  States,  etc. 
[Title  of  Cause.] 

PETITION  FOR  REMOVAL  FROM  THE  SUPERIOR  COURT  OF  THE  STATE  OF ,  IN 

AND  FOR  THE  COUNTY  OF  . 

To  the  Honorable,  the  Judge  of  the  District  Court  of  the  United  States  for 
the District  of : 

Your  petitioner,  the  above-named  Z,  respectfully  shows  to  this  honorable 
court  that  A,  as  plaintiff,  brought  suit  of  a  civil  nature"  in  the  superior  court 

of  the  stater««<  ,  in  and  for  the  county  of  ,  against  your  petitioner 

Z,  and  that  the  matter  or  amount  in  dispute  in  said  cause  exceeds  the  sum  or 
value  of  three  thousand  dollars,  exclusive  of  interest  and  costs. 

That  the  said  controversy  is  between  citizens  of  different  states;  that  the 
plaintiff  A  was,  at  the  time  of  the  commencement  of  this  suit  and  still  is  a 
citizen  of  the  state  of  ,  the  state  wherein  such  suit  is  pending,  and  is  re- 
siding at in  said  state;  and  that  your  petitioner  Z  was,  at  the  time  of  the 

commencement  of  this  suit,  and  still  is,  a  citizen  of  the  state  of ,  and  of 

no  other  state,  residing  in  the  city  of  in  said  state,  and  that  your  peti- 
tioner desires  to  remove  this  suit  which  is  now  pending  and  undetermined  in 
said  state  court,  before  the1  trial  thereof,  into  the  district  court  of  the  United 
States  to  be  held  in  the ,  district  of .  • 

Your  petitioner  further  shows  unto  this  honorable  court  that  from  prejudice 
and  local  influence  in  favor  of  the  plaintiff  and  adverse  to  this  defendant  he 
will  not  be  able  to  obtain  justice  in  said  court  or  in  any  other  state  court  to 
which  said  defendant  may,  under  the  laws  of  the  state,  have  a  right  to  remove 
said  cause,  on  account  of  such  prejudice  or  local  influence. 

Wherefore  your  petitioner  prays  that  an  order  be  entered  for  the  removal  of 

said  case  from  the  court  of  said  state  to  this  court,  and  that  a  writ  of 

certiorari  issue  for  the  return  to  this  court  of  a  certified  copy  of  the  record  in 
said  state  court. 

,  Petitioner. 

[Verification  as  in  Form  1  or  2.] 

FORM  18. 

AFFIDAVIT  FOR  REMOVAL  OF  CAUSE  FOR  PREJUDICE,  Era 
[Title  of  Federal  Court  and  Cause.] 

United  States  of  America,  ) 

-  District  of ,        j  88> 

I,  Z,  being  duly  sworn,  do  say  that  I  am  the  defendant  [or  one  of  the  de- 
fendants] in  the  above-entitled  cause  which  is  now  pending  for  trial  in  the  ' 

superior  court  of  the  state  of  in  and  for  the  county  of  ,  and  that 

from  prejudice  and  local  influence  I  shall  not  be  able  to  obtain  justice  in  said 


§  201,  Ch.  9  MANUAL  OF  FEDERAL  PROCEDURE.  132 

state  court  or  in  any  other  state  court  to  which  I  may,  under  the  laws  of  said 
state,  have  the  right,  on  account  of  such  prejudice  or  local  influences,  to  re- 
move said  cause. 

Subscribed  and  sworn  to,  etc. 

FOEM  19. 

WRIT   OP   CERTIORARI   FOE   BEMOVAL   ON    GROUND   OF   PREJUDICE   OB   LOCAL 

INFLUENCE. 

The  President  of  the  United  States  of  America  to  the  Superior  Court  of  the 
State  of ,  in  and  for  the  County  of ,  Greeting : 

It  being  represented  to  us  that  there  is  now  pending  before^pu  a  certain 

cause  No,  ,  wherein  A  is  plaintiff  and  Z  is  defendant,  which  cause  was 

commenced  in  the  superior  court  of  the  state  of  ,  in  and  for  the  county 

of  ,  by  A  against  the  said  Z,  for  the  purpose  of  [state  object  of  suit], 

and  that  on  the  day  of  ,  a  summons  was  issued  out  of  said  court 

and  that  no  trial  has  yet  been  had;  and,  whereas,  said  defendant  has  caused 

to  be  filed,  in  our  district  court  for  the  district  of  ,  his  petition  for 

the  removal  of  the  said  cause  from  the  said  superior  court  to  the  district  court 

of  the  United  States  for  the  district  of  ,  and  a  bond  with  good 

and  sufficient  surety,  according  to  the  statutes  of  the  United  States  in  such 
case  made  and  provided;  and  has  made  it  appear  to  us  that,  from  prejudice 
or  local  influence  he  will  not  be  able  to  obtain  justice  in  such  state  court  or 
any  other  state  court  to  which  the  defendant  may,  under  the  laws  of  the  state, 
have  the  right  to  remove  the  said  cause,  we  are  willing  to  remove  the"  said 
cause,  and  that  the  records  and  proceedings  therein  should  be  certified  by  said 
superior  court  and  removed  into  our  district  court  of  the  United  States  in 

and  for  the district  of  ,  and  do  hereby  command  you  to  certify  and 

send  the  records  and  proceedings  aforesaid,  with  all  things  concerning  the 
same,  to  the  said  district  court  of  the  United  States,  together  with  this  writ, 
so  that  you  may  have  the  same  at  the  United  States  courthouse  in  the  city  of 

,  in  the  said  district  of ,  on  the  day  of  in  the  said  district 

court  to  be  then  and  there  held,  that  the  said  district  court  may  cause  to  be 
done  thereupon  what  of  right,  according  to  the  laws  of  the  United  States, 
should  be  done. 

Witness,  the  Honorable  ,  Judge  of  said  district  court,  and  the  seal  of 

the  said  district  court  hereto  affixed,  the day  of , . 

,  Clerk  of  said  District  Court. 

§  201.    Remanding  Separable  Controversy  in  Class  Four. 

Part  §28,  Jud.  Code.  "  .  .  .  Provided,  That  if  it  further 
appear  that  said  suit  can  be  fully  and  justly  determined  as  to 
the  other  defendants  in  the  state  court,  without  being  affected 
by  such  prejudice  or  local  influence,  and  that  no  party  to  the 


133  REMOVAL  OP  CAUSES,  ETC.  Ch.  9,  §§  202-204 

suit  will  be  prejudiced  by  a  separation  of  the  parties,  said  dis- 
trict court  may  direct  the  suit  to  be  remanded,  so  far  as  re- 
lates to  such  other  defendants,  to  the  state  court,  to  be  pro- 
ceeded with  therein.  ..." 

§202.  Remanding  upon  Failure  to  Show  Prejudice — Class 
Four. 

Part  §  28,  Jud.  Code.  "  ...  At  any  time  before  the  trial 
of  any  suit  which  is  now  pending  in  any  district  court,  or 
may  hereafter  be  entered  therein,  and  which  has  been  removed 
to  said  court  from  a  state  court  on  the  affidavit  of  any  party 
plaintiff  that  he  had  reason  to  believe  and  did  believe  that, 
from  prejudice  or  local  influence,  he  was  unable  to  obtain  jus- 
tice in  said  state  court,  the  district  court  shall,  on  application 
of  the  other  party,  examine  into  the  truth  of  said  affidavit 
and  the  grounds  thereof,  and,  unless  it  shall  appear  to  the 
satisfaction  of  said  court  that  said  party  will  not  be  able  to 
obtain  justice  4n  said  state  court,  it  shall  cause  the  same  to  be 
remanded  thereto.  ..." 

§  203.    Remanding-  in  Classes  One,  Two,  Three  and  Four. 

Part  §  28,  Jud.  Code.  "  .  .  .  Whenever  any  cause  shall  be 
removed  from  any  state  court  into  any  district  court  of  the 
United  States,  and  the  district  court  shall  decide  that  the 
•  .  cause  was  improperly  removed,  and  order  the  same  to  be  re- 
manded to  the  state  court  from  whence  it  came,  such  remand 
shall  be  immediately  carried  into  execution,  and  no  appeal  or 
writ  of  error  from  the  decision  of  the  district  court  so  re- 
manding such  cause  shall  be  allowed.  ..."  (See  §  37,  Jud. 
Code,  in  §  215,  infra.) 

§204.  Common  Carrier  Employers'  Liability  Cases  not  Re- 
movable, nor  for  Property  Damages,  Unless  in  Excess  of  $3,000 
Involved. 

Part  §55,  Jud.  Code.    "...  Provided,  That  no  case  aris-- 
ing  under  an  act  entitled,  'An  Act  Relating  to  the  Liability 
of  Common  Carriers  by  Railroad  to  Their  Employees  in  Cer- 
tain Cases,'  approved  April  twenty-second,  nineteen  hundred 
and  eight,  or  any  amendment  thereto,  and  brought  in  any 


§  205,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  134 

state  court  of  competent  jurisdiction,  shall  be  removed  to  any 
court  of  the  United  States." 

Act  January  20,  1914,  c.  48,  amending  §  28,  Jud.  Code,  by 
inserting  at  the  conclusion  thereof,  "And  provided  further, 
That  no  suit  brought  in  any  state  court  of  competent  juris- 
diction against  a  railroad  company,  or  other  corporation,  or 
person,  engaged  in  carrying  on  the  business  of  a  common  car- 
rier, to  recover  damages  for  delay,  loss  of,  or  injury  to  prop- 
erty received  for  transportation  by  such  common  carrier  under 
section  twenty  of  the  act  to  regulate  commerce,  approved  Feb- 
ruary fourth,  eighteen  hundred  and  eighty-seven,  as  amended 
June  twenty-ninth,  nineteen  hundred  and  six,  April  thir- 
teenth, nineteen  hundred  and  eight,  February  twenty-fifth, 
nineteen  hundred  and  nine,  and  June  eighteenth,  nineteen 
hundred  and  ten,  shall  be  removed  to  any  e^ourt  of  the  United 
States  where  the  matter  in  controversy  does  not  exceed,  exclu- 
sive of  interest  and  costs,  the  sum  or  value  of  $3,000." 

§205.    Class  Five;  Suits  Between  Citizens  of  a  State  Under 
Land  Grants  from  Different  States. 

§30,  Jud.  Code.  "If  in  any  action  commenced  in  a  state 
court  the  title  of  land  be  concerned,  and  the  parties  are  citi- 
zens of  the  same  state,  and  the  matter  in  dispute  exceeds  the 
sum  or  value  of  three  thousand  dollars,  exclusive  of  interest 
and  costs,  the  sum  or  value  being  made  to  appear,  one  or  more 
of  the  plaintiffs  or  defendants,  before  the  trial,  may  state' to 
the  court,  and  make  affidavit  if  the  court  require  it,  that  he 
or  they  claim,  and  shall  rely  upon,  a  right  or  title  to  the  land 
under  a  grant  from  a  state,  and  produce  the  original  grant, 
or  an  exemplification  of  it,  except  where  the  loss  of  public 
records  shall  put  it  out  of  his  or  their  power,  and  shall  move 
that  any  one  or  more  of  the  adverse  party  inform  the  court 
whether  he  or  they  claim  a  right  or  title  to  the  land  under  a 
C£  grant  from  some  other  state,  the  party  or  parties  so  required 
shall  give  such  information,  or  otherwise  not  be  allowed  to 
plead  such  grant  or  give  it  in  evidence  upon  the  trial.  If  he 
or  they  inform  the  court  that  he  or  they  do  claim  under  such 
grant,  any  one  or  more  of  the  party  moving  for  such  infor- 
mation may  then,  on  petition  and  bond,  as  hereinbefore  men- 
tioned in  this  chapter,  remove  the  cause  for  trial  to  the  district 


135  fcEMOVAL  OP  CAUSES,  ETC.  Ch.  9,  §§  206-20? 

court  of  the  United  States  next  to  be  holden  in  such  district ; 
and  any  one  of  either  party  removing  the  cause  shall  not  be 
allowed  to  plead  or  give  evidence  of  any  other  title  than  that 
by  him  or  them  stated  as  aforesaid  as  the  ground  of  his  or 
their  claim."  (36  Stats.  1096;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  375;  1  U.  S.  Comp.  Stats.  1916,  §  1012.) 

§  206.    Class  Six ;  Removal  of  Suits  of  Aliens  Against  Officers. 

§  34,  Jud.  Code.  "Whenever  a  personal  action  has  been  or 
shall  be  brought  in  any  state  court  by  an  alien  against  any 
citizen  of  a  state  who  is,  or  at  the  time  the  alleged  action  ac- 
crued was,  a  civil  officer  of  the  United  States,  being  a  non- 
resident of  that  state  wherein  jurisdiction  is  obtained  by  the 
state  court,  by  personal  service  of  process,  such  action  may  be 
removed  into  the  district  court  of  the  United  States  in  and 
for  the  district  in  which  the  defendant  shall  have  been  served 
with  the  process,  in  the  same  manner  as  now  provided  for  the 
removal  of  an  action  brought  in  a  state  court  by  the  provisions 
of  the  preceding  section."  (36  Stats.  1098;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  386;  1  U.  S.  Comp.  Stats.  1916,  §  1016.) 

§  207.     Class  Seven ;  Removal  of  Civil  Rights  Cases. 

§  31,  Jud.  Code.  "When  any  civil  suit  or  criminal  prose- 
cution is  commenced  in  any  state  court,  for  any  cause  what- 
soever, against  any  person  who  is  denied  or  cannot  enforce  in 
the  judicial  tribunals  of  the  state,  or  in  the  part  of  the  state 
where  such  suit  or  prosecution  is  pending,  any  right  secured 
to  him  by  any  law  providing  for  the  equal  civil  rights  of  citi- 
zens of  the  United  States,  or  of  all  persons  within  the  juris- 
diction of  the  United  States,  or  against  any  officer,  civil  or 
military,  or  other  person,  for  any  arrest  or  imprisonment  or 
other  trespasses  or  wrongs  made  or  committed  by  virtue  of  or 
under  color  of  authority  derived  from  any  law  providing  for 
equal  rights  as  aforesaid,  or  for  refusing  to  do  any  act  on  the 
ground  that  it  would  be  inconsistent  with  such  law,  such  suit 
or  prosecution  may,  upon  the  petition  of  such  defendant,  filed 
in  said  state  court  at  any  time  before  the  trial  or  final  hear- 
ing of  the  cause,  stating  the  facts  and  verified  by  oath,  be  re- 
moved for  trial  into  the  next  district  court  to  be  held  in  the 
district  where  it  is  pending.  Upon  the  filing  of  such  petition 


§  208,  Ch.  9  MANUAL  OF  FEDERAL  PROCEDURE.  136 

all  further  proceedings  in  the  state  courts  shall  cease,  and 
shall  not  be  resumed  except  as  hereinafter  provided.  But  all 
bail  and  other  security  given  in  such  suit  or  prosecution  shall 
continue  in  like  force  and  effect  as  if  the  same  had  proceeded 
to  final  judgment  and  execution  in  the  state  court.  It  shall 
be  the  duty  of  the  clerk  of  the  state  court  to  furnish  such  de- 
fendant, petitioning  for  a  removal,  copies  of  said  process 
against  him,  and  of  all  pleadings,  depositions,  testimony,  and 
other  proceedings  in  the  case.  If  such  copies  are  filed  by  said 
petitioner  in  the  district  court  on  the  first  day  of  its  session, 
the  cause  shall  proceed  therein  in  the  same  manner  as  if  it 
had  been  brought  there  by  original  process;  and  if  the  said 
clerk  refuses  or  neglects  to  furnish  such  copies,  the  petitioner 
may  thereupon  docket  the  case  in  the  district  court,  and  the 
said  court  shall  then  have  jurisdiction  therein,  and  may,  upon 
proof  of  such  refusal  or  neglect  of  said  clerk,  and  upon  rea- 
sonable notice  to  the  plaintiff,  require  the  plaintiff  to  file  a 
declaration,  petition,  or  complaint  in  the  cause;  and,  in  case 
of  his  default,  may  order  a  nonsuit  and  dismiss  the  case  at 
the  costs  of  the  plaintiff,  and  such  dismissal  shall  be  a  bar 
to  any  further  suit  touching  the  matter  in  controversy.  But 
if,  without  such  refusal  or  neglect  of  said  clerk  to  furnish  such 
copies  and  proof  thereof,  the  petitioner  for  removal  fails  to 
file  copies  in  the  district  court,  as  herein  provided,  a  certifi- 
cate, under  the  seal  of  the  district  court,  stating  such  failure, 
shall  be  given,  and  upon  the  production  thereof  in  said  state 
court  the  cause  shall  proceed  therein  as  if  no  petition  for 
removal  had  been  filed."  (36  Stats.  1096;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  376;  1  U.  S.  Comp.  Stats.  1916,  §  1013; 
Foster's  Federal  Practice,  5th  ed.,  pp.  20,  1762,  1879.) 

§  208.    Habeas  Corpus  Proceedings  Where  Civil  Rights  Denied, 
and  Other  Cases. 

§  32,  Jud.  Code.  "When  all  the  acts  necessary  for  the  re- 
moval of  any  suit  or  prosecution,  as  provided  in  the  preceding 
section,  have  been  performed,  and* the  defendant  petitioning 
for  such  removal  is  in  actual  custody  on  process  issued  by  said 
state  court,  it  shall  be  the  duty  of  the  clerk  of  said  district 
court  to  issue  a  writ  of  habeas  corpus  cum  causa,  and  of  the 
marshal,  by  virtue  of  said  writ,  to  take  the  body  of  the  de- 
fendant into  his  custody,  to  be  dealt  with  in  said  district 


137  REMOVAL  OP  CAUSES,  ETC.  Ch.  9,  §§  209-210 

court  according  to  law  and  the  orders  of  said  court,  or,  in 
vacation,  of  any  judge  thereof;  and  the  marshal  shall  file 
with  or  deliver  to  the  clerk  of  said  state  court  a  duplicate  copy 
of  said  writ."  (36  Stats.  1097;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  380;  1  U.  S.  Comp.  Stats.  1916,  §  1014.) 

§209.    Class  Eight;  Removal  in  Cases  Against  Revenue  or 
Congressional  Officers. 

Part  §33,  Jud.  Code  (Combining  §643,  Rev.  Stats,  and 
first  part  §  8,  Sundry  Civil  Appropriation  Act,  28  Stats.  401}. 
"When  any  civil  suit  or  criminal  prosecution  is  commenced  in 
any  court  of  a  state  against  any  officer  appointed  'under  or 
acting  by  authority  of  any  revenue  law  of  the  United  States 
now  or  hereafter  enacted,  or  against  any  person  acting  under 
or  by  authority  of  any  such  officer,  on  account  of  any  act  done 
under  color  of  his  office  or  of  any  such  law,  or  on  account  of 
any  right,  title,  or  authority  claimed  by  such  officer  or  other 
person  under  any  such  law;  or  is  commenced  against  any 
person  holding  property  or  estate  by  title  derived  from  any 
such  officer,  and  affects  the  validity  of  any  such  revenue  law ; 
or  when  any  suit  is  commenced  against  any  person  for  (sic) 
on  account  of  anything  done  by  him  while  an  officer  of  either 
House  of  Congress  in  the  discharge  of  his  official  duty,  in 
executing  any  order  of  such  House,  the  said  suit  or  prosecu- 
tion may,  at  any  time  before  the  trial  or  final  hearing  there- 
of, be  removed  for  trial  into  the  district  court  next  to  be 
holden  in  the  district  where  the  same  is  pending,  upon  the 
petition  of  such  defendant  to  said  district  court.  .  .  ."  (36 
Stats.  1097 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  380 ;  1  U.  S.  Comp. 
Stats.  1916,  §  1015.) 

§210.    Procedure    on    Removal    Under    Class     Eight — Cases 
Against  Revenue  or  Congressional  Officers. 

Part  §33,  Jud.' Code.  "...  the  said  suit  or  prosecution 
(i.  e.,  against  revenue  or  congressional  officers)  may,  at  any 
time  before  the  trial  or  final  hearing  thereof,  be  removed  for 
trial  into  the  district  court  next  to  be  holden  in  the  district 
where  the  same  is  pending,  upon  the  petition  of  such  defend- 
ant to  said  district  court,  and  in  the  following  manner:  Said 
petition  shall  set  forth  the  nature  of  the  suit  or  prosecution 


§  210,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  138 

and  be  verified  by  affidavit,  and,  together  with  a.  certificate 
signed  by  an  attorney  or  counselor  at  law  of  some  court  of 
record  of  the  state  where  such  suit  or  prosecution  is  com- 
menced, or  of  the  United  States,  stating  that,  as  counsel  for 
the  petitioner,  he  has  examined  the  proceedings  against  him 
and  carefully  inquired  into  all  the  matters  set  forth  in  the 
petition,  and  that  he  believes  them  to  be  true,  shall  be  pre- 
sented to  the  said  district  court,  if  in  session,  or  if  it  be  not, 
to  the  clerk  thereof  at  his  office,  and  shall  be  filed  in  said 
office."  (See  §  209  above.) 

FORM  20. 
PETITION  FOR  REMOVAL  BY  CERTIORABI  IN  ACTION  AGAINST  REVENUE  OFFICERS. 

In  the  District  Court  of,  etc.,  of  the  United  States. 
[Title  of  Cause.] 

To  the  Honorable  Judges  of  the  District  Court  of  the  United  States,  for  the 
Northern  District  of  California. 

The  petition  of ,  and ,  the  defendants  above  named,  respectfully 

showeth : 

That  before  the  commencement  of  the  suit  above  named,  and  at  all  the 

times  hereinafter  mentioned,  the  said  and  were  and  now  are  the 

duly  appointed  and  qualified  collector  of.  internal  revenue  of  the  United 
States  and  deputy  internal  revenue  agent  of  the  United  States,  respectively, 

for  the  first  revenue  district  of  California,  and  the  said  was  at  such 

times  and  is  the  United  States  marshal  for  the  northern  district  of  California, 
all  of  your  petitioners  acting  under  and  by  the  authority  of  the  internal 
revenue  laws  of  the  United  States. 

That  heretofore,  and  on  the  day  of  ,  ,  one  was  the 

occupant  and  lessee  of  the  premises,  No.  624  Market  Street,  and  the 
owner  and  in  control  of  certain  personal  property  therein  contained,  to  wit: 
certain  machinery,  tools,  implements,  apparatus,  fixtures,  boxes,  barrels,  tobacco, 
and  cigars,  shelving  and  counters,  and  other  articles  and  things. 

That  said  on  or  about  said  day,  and  continuously  theretofore  and 

thereafter,  and  while  in  the  occupancy  of  said  premises  and  in  the  ownership 
and  control  of  said  personal  property  as  aforesaid,  having  bonded  the  same 
as  a  cigar  and  tobacco  manufactory,  then  and  there  committed  certain  vio- 
lations against  the  said  internal  revenue  laws  of  the  United  States  in  the 

use  and  management  of  said  property,  to  wit,  the  said  did  then  and 

there  and  upon  said  premises  wrongfully,  unlawfully,  and  knowingly,  and 
contrary  to  the  provisions  of  sections  3372,  3374,  3397,  and  3400  of  the 
Revised  Statutes  of  the  United  States,  remove  from  said  manufactory,  with- 
out the  proper  stamps  denoting  the  tax  thereon,  tobacco  made  therein,  made 
false  and  fraudulent  entries  of  manufactures  and  sales  of  tobacco  [etc.; 


139  REMOVAL  OF  CAUSES,   ETC.  Ch.  9,  §  210 

other  charges  specified],  and  committed  other  offenses  against  said  revenue 
laws  of  the  United  States. 

That  thereafter  a  suit  for  divorce  was  instituted  in  the  superior  court  of 
the  city  and  county  of  San  Francisco  within  the  state  and  district  aforesaid 
by  against  the  said  ,  her  husband,  and  such  proceedings  were  there- 
upon had  that  a  decree  of  said  superior  court  was  made  and  entered  granting 

the  divorce  and  awarding  said  personal  property  to  said  ,  subject  to  the 

payment  of  certain  claims  alleged  to  have  been  established  in  said  court 

against  her,  and  on  the day  of , ,  a  receiver, ,  was  appointed 

by  said  court  for  said  property. 

That  said  receiver  thereupon  duly  qualified  and  acted  as  such. 

That  thereafter  the  said  receiver  and  ,  the  latter  having,  since  the 

appointment  and  with  the  consent  of  said  receiver,  bonded  the  said  premises 
as  a  cigar  and  tobacco  manufactory,  committed  certain  violations  against  the 
said  internal  revenue  laws  of  the  United  States,  to  wit:  did  then  and  there 
and  upon  the  said  premises  [repeats  the  charges  as  above],  and  committed 
other  offenses  against  the  said  revenue  laws  of  the  United  States. 

That  heretofore,  and  on  the  day  of  ,  your  petitioners,  as 

such  collector,  and  as  such  internal  revenue  agent,  seized  said  personal 

property  for  the  violations  aforesaid  of  said  laws,  and  thereafter,  on  the  

day  of  ,  said  collector  delivered  the  same  into  the  custody  of  your  peti- 
tioner   ,  as  such  United  States  marshal,  who  now  holds  the  same  by  virtue 

of  such  delivery. 

That  said  receiver  has  not  yet  been  discharged  by  said  superior  court. 

That  heretofore,  and  on  the  day  of  ,  the  suit  above  entitled  was 

commenced  in  said  superior  court  by  said  receiver,  against  your  peti- 
tioners for  $20,000  damages  for  an  alleged  wrongful  conversion  of  said  prop- 
erty by  reason  of  the  seizure  and  acts  hereinbefore  mentioned. 

That  at  all  of  such  times  your  petitioners  were  acting  under  color  of  their 
said  respective  officers  and  by  authority  of  the  internal  revenue  laws  aforesaid. 

That  your  petitioners  have  been  served  with  process  in  said  suit,  to  wit: 
with  summons  and  complaint  inaugurating  the  same,  and  said  process  has 
been  served  as  aforesaid  within  this  said  northern  district  of  California,  and 
that  there  has  not  been  as  yet  any  trial  or  final  hearing  of  said  suit. 

Your  petitioners  therefore  pray  that,  in  pursuance  of  the  statute  of  said 
United  States  in  such  case  made  and  provided,  the  said  suit,  so  commenced 
in  said  superior  court  of  the  city  and  county  aforesaid  against  your  petitioners, 
may  be  removed  therefrom  into  this  honorable  court  for  trial  and  determina- 
tion, and  thereupon  proceed  as  a  cause  originally  commenced  in  the  same; 
and  that  a  writ  of  certiorari  in  this  behalf,  for  the  record  and  proceedings 
heretofore  had  in  said  cause  in  said  superior  court,  may  issue  from  this  honor- 
able court  to  the  said  superior  court  of  said  city  and  county  as  by  the  same 
statute  is  provided. 


§§  211-212,  Ch.  9      MANUAL  OF  FEDERAL  PROCEDURE.  140 

State  and  Northern  District  of  California, — ss. 

,  and  ,  the  above-named  petitioners,  make  oath  and  say  that 

the  matters  set  forth  in  the  foregoing  petition  are  true  in  substance  and  in 

fact,  the  said making  oath  upon  information  and  belief. 

[Signatures.] 

Subscribed  and  sworn  to,  etc. 

CERTIFICATE. 

I,  ,  an  attorney  and  counselor  at  law  of  the  supreme*  court  of  said 

state,  and  assistant  United  States  attorney  for  the  northern  district  of  Cali- 
fornia, do  hereby  certify  that  as  counsel  for  the  petitioners  above  named  I 
have1  examined  the  proceedings  against  them  in  the  foregoing  petition  men- 
tioned, and  have  carefully  inquired  into  all  the  matters  set  forth  in  said  peti- 
tion, and  that  I  believe  the  same  to  be  true. 

,  Assistant  United  States  Attorney. 

§  211.    Procedure  After  Removal  in  Class  Eight. 

Part  §  33,  Jud.  Code.  ' '  The  cause  shall  thereupon  be  en- 
tered on  the  docket  of  the  district  court,  and  shall  proceed  as 
a  cause  originally  commenced  in  that  court;  but  all  bail  and 
other  security  given  upon  such  suit  or  prosecution  shall  con- 
tinue in  like  force  and  effect  as  if  the  same  had  proceeded  to 
final  judgment  and  execution  in  the  state  court."  (See  §  209 
above.) 

§212.    Certiorari  and    Habeas  Corpus    Proceedings  in  Class 
Eight — Suits  Against  Revenue  or  Congressional  Officers. 

Last  Part  §  33,  Jud.  Code.  "  .  .  .  When  the  suit  is  com- 
menced in  the  state  court  by  summons,  subpoena,  petition,  or 
other  process  except  capias,  the  clerk  of  the  district  court  shall 
issue  a  writ  of  certiorari  to  the  state  court,  requiring  it  to 
send  to  the  district  court  the  record  and  proceedings  in  the 
cause.  When  it  is  commenced  by  capias  or  by  any  other  sim- 
ilar form  or  proceeding  by  which  a  personal  arrest  is  ordered, 
he  shall  issue  a  writ  of  "habeas  corpus  cum  causa,  &  duplicate 
of  which  shall  be  delivered  to  the  clerk  of  the  state  court,  or 
left  at  his  office,  by  the  marshal  of  the  district  or  his  deputy, 
or  by  some  person  duly  authorized  thereto;  and  thereupon  it 
shall  be  the  duty  of  the  state  court  to  stay  all  further  proceed- 
ings in  the  cause,  and  the  suit  or  prosecution,  upon  delivery 
of  such  process,  or  leaving  the  same  as  aforesaid,  shall  be 
held  to  be  removed  to  the  district  court,  and  any  further  pro- 


141  REMOVAL  OP  CAUSES,  ETC.  Ch.  9,  §  212 

ceedings,  trial,  or  judgment  therein  in  the  state  court  shall  be 
void.  If  the  defendant  in  the  suit  or  prosecution  be  in  actual 
custody  on  mesne  process  therein,  it  shall  be  the  duty  of  the 
marshal,  by  virtue  of  the  writ  of  Tiabecus  corpus  cum  causa,  to 
take  the  body  of  the  defendant  into  his  custody,  to  be  dealt 
with  in  the  cause  according  to  law  and  the  order  of  the  dis- 
trict court,  or,  in  vacation,  of  any  judge  thereof ;  and  if,  upon 
the  removal  of  such  suit  or  prosecution,  it  is  made  to  appear 
to  the  district  court  that  no  copy  of  the  record  and  proceed- 
ings therein  in  the  state  court  can  be  obtained,  the  district 
court  may  allow  and  require  the  plaintiff  to  proceed  de  novo 
and  to  file  a  declaration  of  his  cause  of  action,  and  the  parties 
may  thereupon  proceed  as  in  actions  originally  brought  in  said 
distric.t  court.  On  failure  of  the  plaintiff  so  to  proceed,  judg- 
ment of  non  prosequitur  may  be  rendered  against  him,  with 
costs  for  the  defendant."  (See  §  209  above.) 

FORM  21. 

ORDER  FOR  WRIT  or  CERTIORARI  IN  ACTION  AGAINST  REVENUE  OFFICERS. 
In  the  District  Court,  etc.,  of  the  United  States. 

In  re  the   Petition  of et  al.,  for   Writ   of   Certiorari  in v. 

et  al. 

Upon  motion   of  ,  Esq.,  assistant  United   States    attorney,  and   on 

filing   petition    of  and   ordered,    that  a    writ   of   certiorari   issue 

herein  to  the  superior  court  of  the  city  and  county  of  San  Francisco,  re- 
quiring said  court  to  transmit  the  record  and  proceedings  in   said  cause 

of v.  et  al.,  to  this  court  within  ten  days. 

Further  ordered,  that  said  writ  be  served  by  delivering  to  said  superior 

court  and  to  the  clerk  thereof  each  a  certified  copy  and  that  be  and 

he  hereby  is  appointed  an  elisor  to  serve  said  writ  of  certimari,  the 

marshal  of  this  district,  being  a  party  to  this  proceeding. 

FORM  22. 

WRIT  or  CERTIORARI  IN  ACTION  AGAINST  REVENUE  OFTTOERS. 
In  the  District  Court  of  the  United  States,  Within  and  for  Northern  District 

of  California. 

Northern  District  of  California, 


n  .uistrict  or   waiirornia,  \ 
United  States  of  America,  j  ss* 


To  the  Superior  Court  in  and  for  the  City  and  County  of  San  Francisco, 

State  of  California,  Greeting: 

Being  informed  that  there  is  now  pending  before  you  a  suit    wherein 
is  plaintiff,   and  and  — —  are  defendants,  which   said  suit  is 


§  213,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  142 

brought  for  damages  alleged  to  have  been  suffered  by  said  plaintiff  by 
reason  of  an  alleged  wrongful  conversion  of  certain  property  by  said  de- 
fendants, the  said  alleged  wrongful  conversion  occurring  while  said  defend- 
ants were  in  discharge  of  their  duties  as  officers  of  the  United  States,  tinder 
the  revenue  laws'  of  the  United  States,  and  which  said  suit  has  been  com- 
menced by  the  service  of  process,  to  wit,  summons  and  complaint  upon  said 
and  and  said  suit  has  not  yet  been  heard  and  determined. 

Therefore,  we  being  willing  for  certain  reasons  that  said  case  and  the 
records  and  proceedings  heretofore  had  therein  should  be  certified  by  said 
superior  court  and  removed  into  our  district  court  of  the  United  States 

in  and  for  the northern  district  of  California  do  hereby  command  you 

that  you  send,  without  delay  and  within  ten  days,  to  the  said  district  court 
as  aforesaid,  the  records  and  proceedings  in  said  case,  so  that  the  said 
district  court  may  act  thereon  as  of  right  and  according  to  law  ought  to  be 
done.  >  ipn 

Witness,   the   Honorable  ,  Judge  of  said   district   court,  ,   this 

day  of  ,  A.  D. . 

[Seal]  , 

Clerk  of  the  United  States  District  Court,  in  and  for  the  Northern 

District  of  California. 

§213.  Proofs  of  Records  When  Copies  Refused  by  State 
Court  Clerks. 

§55,  Jud.  Code  (re-enacting  §  645,  Rev.  Stats.).  "In  any 
case  where  a  party  is  entitled  to  copies  of  the  records  and 
proceedings  in  any  suit  or  prosecution  in  a  state  court,  to  be 
used  in  any  court  of  the  United  States,  if  the  clerk  of  said 
state  court,  upon  demand,  and  the  payment  or  tender  of  the 
legal  fees,  refuses  or  neglects  to  deliver  to  him  certified  copies 
of  such  records  and  proceedings,  the  court  of  the  United  States 
in  which  such  records  and  proceedings  are  needed  may,  on 
proof  by  affidavit  that  the  clerk  of  said  state  court  has  refused 
or  neglected  to  deliver  copies  thereof,  on  demand  as  afore- 
said, direct  such  record  to  be  supplied  by  affidavit  or  other- 
wise, as  the  circumstances  of  the  case  may  require  and  allow; 
and  thereupon  such  proceeding,  trial,  and  judgment  may  be 
had  in  the  said  court  of  the  United  States,  and  all  such  pro- 
cesses awarded,  as  if  certified  copies  of  such  records  and 
proceedings  had  been  regularly  before  the  said  court."  (36 
Stats.  1098 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  387 ;  1  U.  S.  Comp. 
Stats.  1916,  §  1017;  Foster's  Federal  Practice,  5th  ed.,  p.  1877.) 


REMOVAL  OP  CAUSES,  ETC.  Ch.  9,  §  214 

§  214.    Enforcement  of  Return  of  Record  from  State  to  Fed- 
eral Courts. 

§  39,  Jud.  Code  (re-enacting  18  Stats.  472).  "In  all  causes 
removable  under  this  chapter,  if  the  clerk  of  the  state  court 
in  which  any  such  cause  shall  be  pending  shall  refuse  to  any 
one  or  more  of  the  parties  or  persons  applying  to  remove  the 
same,  a  copy  of  the  record  therein,  after  tender  of  legal  fees 
for  such  copy,  said  clerk  so  offending  shall,  on  conviction 
thereof  in  the  district  court  of  the  United  States  to  which  said 
action  or  proceeding  was  removed,  be  fined  not  more  than  one 
thousand  dollars,  or  imprisoned  not  more  than  one  year,  or 
both.  The  district  court  to  which  any  cause  shall  be  remov- 
able under  this  chapter  shall  have  power  to  issue  a  writ  of 
certiorari  to  said  state  court  commanding  said  state  court  to 
make  return  of  the  record  in  any  such  cause  removed  as  afore- 
said, or  in  which  any  one  or  more  of  the  plaintiffs  or  defend- 
ants have  complied  with  the  provisions  of  this  chapter  for  the 
removal  of  the  same,  and  enforce  said  writ  according  to  law. 
If  it  shall  be  impossible  for  the  parties  or  persons  removing 
any  cause  under  this  chapter,  or  complying  with  the  pro- 
visions for  the  removal  thereof,  to  obtain  such  copy,  for  the 
reason  that  the  clerk  of  said  state  court  refuses  to  furnish 
a  copy,  on  payment  of  legal  fees,  or  for  any  other  reason,  the 
district  court  shall  make  an  order  requiring  the  prosecutor  in 
any  such  action  or  proceeding  to  enforce  forfeiture  or  recover 
penalty,  as  aforesaid,  to  file  a  copy  of  the  paper  or  proceeding 
by  which  the  same  was  commenced,  within  such  time  as  the 
court  may  determine ;  and  in  default  thereof  the  court  shall 
dismiss  the  said  action  or  proceeding;  but  if  said  order  shall 
be  complied  with,  then  said  district  court  shall  require  the 
other  party  to  plead,  and  said  action  or  proceeding  shall  pro- 
ceed to  final  judgment.  The  said  district  court  may  make  an 
order  requiring  the  parties  thereto  to  plead  de  novo;  and  the 
bond  given,  conditioned  as  aforesaid,  shall  be  discharged  so 
far  as  it  requires  copy  of  the  record  to  be  filed  as  aforesaid." 
(36  Stats.  1099;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  466;  1  U.  S. 
Comp.  Stats.  1916,  §  1021;  Foster's  Federal  Practice,  5th  ed., 
p.  1878;  Simkins'  Federal  Equity  Suit,  3d  ed.,  781.) 


§  215,  Ch.  9  MANUAL  OP  FEDERAL  PROCEDURE.  K4 

FOEM  23. 
WRIT  OP  CERTIORARI  UNDER  §  39,  JUDICIAL  CODE. 

The  President  of  the  United  States  of  America  to  the  Judge  of  the  [describe 
€he  court],  Greeting: 

Whereas,  it  has  been  represented  to  the  district  court  of  the  United  States 

for  the  district  of  ,  that  a  certain  suit  was  commenced  in  the   [state 

court],  wherein  A,  a  citizen  and  resident  of  the  state  of  was  plaintiff, 

and  Z,  a  citizen  of  the  state  of  was  defendant,  and  that  the  said  Z 

duly  filed  in  the  said  state  court  his  petition  for  the  removal  of  said  cause 
into  the  said  district  court  of  the  United  States,  and  filed  -with  said  petition 
the  bond  with  surety  required  by  law,  and  that  the  clerk  of  said  state  court 
has  refused  to  said  petitioner  for  the  removal  of  said  cause  a  copy  of  the 
record  therein,  though  his  legal  fees  therefor  were  tendered  by  said  peti- 
tioner. 

You,  therefore,  are  hereby  commanded  that  you  forthwith  certify  or  cause 

to  be  certified  to  the  said  district  court  of  the  United  States  for  the  , 

district  of  ,  a  full,  true,  and  complete  copy  of  the  record  and  pro- 
ceedings in  said  cause  in  which  the  said  petition  for  removal  was  filed 
as  aforesaid,  plainly  and  distinctly,  and  in  as  full  and  ample  a  manner  as 
the  same  now  remain  before  you,  together  with  this  writ;  so  that  the  said 
district  court  may  be  able  to  proceed  thereon  and  do  what  shall  appear  to 
them  of  right  ought  to  be  done.  Herein  fail  not. 

Witness,  the  Honorable  ,  Judge  of  said  district  court,  and  the  seal 

of  the  said court  hereto  affixed,  the day  of , . 

,  Clerk  of  said  District  Court. 

§  215.    Remand  or  Dismissal  of  Case  Fraudulently  or  Improp- 
erly Removed. 

§  37,  Jud.  Code.  "If  in  any  suit  commenced  in  a  district 
court,  or  removed  from  a  state  court  to  a  district  court  of  the 
United  States,  it  shall  appear  to  the  satisfaction  of  said  dis- 
trict court,  at  any  time  after  such  suit  has  been  brought  or 
removed  thereto,  that  such  suit  does  not  really  and  substan- 
tially involve  a  dispute  or  controversy  properly  within  the 
jurisdiction  of  said  district  court,  or  that  the  parties  to  said 
suit  have  improperly  or  collusively  made  or  joined,  either  as 
plaintiffs  or  defendants,  for  the  purpose  of  creating  a  case 
cognizable  or  removable  under  this  act,  the  said  district  court 
shall  proceed  no  farther  therein,  but  shall  dismiss  the  suit 
or  remand  it  to  the  court  from  which  it  was  removed,  as  justice 
may  require,  and  shall  make  such  order  as  to  costs  as  shall 
be  just."  (Annotated  §  160,  supra.) 


145  REMOVAL,  OP  CAUSES,  ETC.  Ch.  9,  §  216 

FORM  24. 

MOTION  TO  REMAND  ON  THE  GROUND  OF  No  JURISDICTION,  UNDER  $  37,  JUDICIAL 

CODE. 

[Title  of  Federal  Court  and  Cause.] 

Now  comes  the  plaintiff  and  moves  this  court  to  remand  the  above- 
entitled  cause  to  the  superior  court  in  and  for  the  county  of  ,  in  the 

state  of ,  on  the  ground  that  this  court  is  without  jurisdiction  to  hear 

and  determine  the  cause.     [Set  out  in  what  respects  jurisdiction  is  lacking.] 

,  Attorneys  for  Plaintiff. 

FORM  25. 

ORDER  REMANDING  CAUSE. 
At  a  Stated  Term,  etc. 
[Title  of  Federal  Court  and  Cause.] 
Present,  The  Honorable,  etc. 

Plaintiff's  motion  to  remand  heretofore  heard  and  submitted  to  the  court 
for  consideration  and  decision  having  been  fully  considered,  and  the  opinion 
of  the  court  having  been  delivered,  it  is  in  accordance  with  said  opinion, 

Ordered  that  said  motion  be,  and  the  same  is,  granted,  and  that  this 
cause  be,  and  the  same  is  hereby,  remanded  to  the  superior  court  of  the 
county  of  Amador,  state  of  California,  for  further  proceedings. 

,  Judge  United  States  District  Court. 

§  216.  Provisional  Remedies  of  State  Court  Preserved — Bonds 
Given  in  State  Suit — Valid  on  Removal. 

§  36,  Jud.  Code  (drawn  from  18  Stats.  471,  superseding 
§  646,  Rev.  Stats.).  "When  any  suit  shall  be  removed  from  a 
state  court  to  a  district  court  of  the  United  States,  any  attach- 
ment or  sequestration  of  the  goods  or  estate  of  the  defendant 
had  in  such  suit  in  the  state  court  shall  hold  the  goods  or 
estate  so  attached  or  sequestered  to  answer  the  final  judg- 
ment or  decree  in  the  same  manner  as  by  law  they  would  have 
been  held  to  answer  final  judgment  or  decree  had  it  been  ren- 
dered by  the  court  in  which  said  suit  was  commenced.  All 
bonds,  undertakings,  or  security  given  by  either  party  in  such 
suit  prior  to  its  removal  shall  remain  valid  and  effectual  not- 
withstanding said  removal;  and 'all  injunctions,  orders,  and 
other  proceedings  had  in  such  suit  prior  to  its  removal  shall 
remain  in  full  force  and  effect  until  dissolved  or  modified  by 
the  court  to  which  such  suit  shall  be  removed."  (36  Stats. 
1098 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  387 ;  1  U.  S.  Comp.  Stats. 

Manual — 10 


§  217,  Ch.  9  MANUAL  OF  FEDERAL  PROCEDURE.  146 

1916,  §  1018;  Foster's  Federal  Practice,  5th  ed.,  pp.  977,  1910; 
Simians'  Federal  Equity  Suit,  3d  ed.,  p.  789.) 

§  217.    Proceedings  After  Removal — Generally. 

§  38,  Jud.  Code  (re-enacting  18  Stats.  472).  "The  district 
court  of  the  United  States  shall,  in  all  suits  removed  under 
the  provisions  of  this  chapter,  proceed  therein  as  if  the  suit 
had  been  originally  commenced  in  said  district  court,  and  the 
same  proceedings  had  been  taken  in  such  suit  in  said  district 
court  as  shall  have  been  had  therein  in  said  state  court  prior 
to  its  removal."  (36  Stats.  1098;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  446;  1  U.  S.  Comp.  Stats.  1916,  §1020;  Foster's  Federal 
Practice,  5th  ed.,  p.  578;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  789,  790,  838.) 


147  STATUTES  OF  LIMITATIONS.  Ch.  10,  §  230 


CHAPTER  10. 

STATUTES  OF  LIMITATIONS. 

SEC. 

230.  In  General, 

231.  Capital  Offenses. 

232.  Offenses  not  Capital. 

233.  Unless  Fleeing  from  Justice. 

234.  Crimes  Under  Revenue  and  Slave-trade  Laws. 

235.  Crimes  Under  Internal  Revenue  Laws. 

236.  Seduction  of  Female  Passenger  on  Vessel. 

237.  Violation  of  Naturalization  Laws. 

238'.  Penalties  and  Forfeitures  Under  Federal  Laws. 

239.  Penalties  and  Forfeitures  Under  Customs  Revenue  Laws. 

240.  Settlements  for  Customs  Duties. 

241.  Forfeiture  or  Penalty  Under  Copyright  Laws — Criminal  Prosecutions. 

242.  Forfeiture  and  Damage  Suits  for  False  Claims  Against  United  States. 

243.  Claims  Against  United  States. 

244.  Recovery  of  Taxes  Wrongfully  Collected. 

245.  Suits  by  United  States  to  Vacate  Land  Patents. 

246.  Suits  by  United  States  to  Vacate  Railway  or  Wagon  Road  Patents. 

247.  Suits  by  Patentee  of  Lands  Patented  to  Indians. 

248.  Under  Employers'  Liability  Acts  and  Under  Act  Limiting  Hours  of 

Labor. 

249.  Action  for  Neglect  to  Prevent  Conspiracy  Against  Civil  Bights. 

250.  Infringement  of  Patent. 

251.  Infringement  of  Copyrights. 

252.  Liability  of  Stockholders  of  National  Banks. 

253.  Interstate  Commerce  Act. 

254.  Suspension  of  Statute  of  Limitations  Under  Trading  With  the  Etaemy 

Act. 

§230.  In  General.  Unless  a  federal  statute  of  limitations  is 
prescribed  for  the  particular  suit,  the  state  statute  of  limitations 
of  the  state  in  which  the  district  lies  will  govern  under  §  721, 
Rev.  Stats.,  quoted  next  page  148.1 

l  Michigan  Ins.  Bank  v.  Eldred,  130  TJ.  8.  696,  32  L.  Ed.  1081,  9  Sup. 
Ct.  691;  Davie  v.  Briggs,  97  U.  S.  637,  24  L.  Ed.  1089;  Elmendorf  v.  Taylor, 
10  Wheat.  (U.  S.)  176,  6  L.  Ed.  2S9;  Campbell  v.  City  of  Haverhill,  155 
U.  S.  615,  39  L.  Ed.  280,  15  Sup.  Ct.  217;  Lewis  v.  Lewis,  7  How.  (U.  S.) 
776,  12  L,  Ed.  909;  Pond  v.  United  States,  111  Fed.  989,  49  C.  C.  A.  5S2; 
Butler  v.  Poole,  44  Fed.  586. 


§§  231-232,  Ch.  10     MANUAL  OF  FEDERAL  PROCEDURE.  148 

In  the  absence  of  federal  legislation,  the  federal  courts  recog- 
nize the  state  statutes  of  limitations,  giving  them  the  same  con- 
struction and  effect  as  are  given  by  state  tribunals.  This  ap- 
plies to  a  state  statute  allowing  renewal  of  a  case  after  nonsuit 
or  dismissal.  (Fordham  v.  Hicks  (S.  D.  Ga.  N.  D.),  224  Fed. 
810,  813.) 

§  721,  Rev.  Stats.  "The  laws  of  the  several  states,  except 
where  the  Constitution,  treaties,  or  statutes  of  the  United 
States  otherwise  require  or  provide,  shall  be  regarded  as 
rules  of  decision  in  trials  at  common  law,  in  the  courts  of 
the  United  States,  in  cases  where  they  apply."  (5  Fed. 
Stats.  Ann.,  2d  ed.,  1123 ;  3  Comp.  Stats.  1916,  §  1538,  p.  2981.) 

Special  limitations  for  crimes  and  offenses  are  set  out  in  §§  231- 
237,  infra;  for  penalties  and  forfeitures  in  §§  238,  239,  241,  242, 
infra;  suits  against  the  United  States,  §§  243,  244,  infra;  actions 
respecting  land  patents,  §§  245-247,  infra,  and  other  actions,  §§  248- 
253,  infra. 

§  231.    Capital  Offenses. 

$1043,  Rev.  Stats.  "No  person  shall  be  prosecuted,  tried 
or  punished  for  treason  or  other  capital  offense,  wilful  murder 
excepted,  unless  the  indictment  is  found  within  three  years 
next  after  such  treason  or  capital  offense  is  done  or  com- 
mitted." (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  692;  3  U.  S.  Comp. 
Stats.  1916,  §  1707,  p.  3577.) 

§  232.    Offenses  not  Capital. 

§  1044,  Rev.  Stats.  ' '  No  person  shall  be  prosecuted,  tried, 
or  punished  for  any  offense,  not  capital,  except  as  provided 
in  section  one  thousand  and  forty-six  (R.  S.)  unless  the  in- 
dictment is  found,  or  the  information  is  instituted  within  three 
years  next  after  such  offense  shall  have  been  committed.  But 
this  act  shall  not  have  effect  to  authorize  the  prosecution,  trial 
or  punishment  for  any  offense,  barred  by  the  provisions  of 
existing  laws."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  692 ;  3  U.  S. 
Comp.  Stats.  1916,  §  1708,  p.  3577.) 


X49  STATUTES  OF  LIMITATIONS.        Ch.  10,  §§  233-236 

§  233.     Unless  Fleeing  from  Justice. 

§1045,  Rev.  Stats.  "(Fleeing  from  justice.)  Nothing  in 
the  two  preceding  sections  shall  extend  to  any  person  fleeing 
from  justice."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  696;  3  U.  S. 
Comp.  Stats.  1916,  §  1709,  p.  3585.) 

§  234.    Crimes  Under  Revenue  and  Slave-trade  Laws. 

§  1046,  Rev.  Stats.  "No  person  shall  be  prosecuted,  tried, 
or  punished  for  any  crime  arising  under  the  revenue  laws,  or 
the  slave-trade  laws  of  the  United  States,  unless  the  indict- 
ment is  found  or  the  information  is  instituted  within  five  years 
next  after  the  committing  of  such  crime."  (2  Fed.  Stats. 
Ann.,  2d  ed.,  p.  697 ;  3  U.  S.  Comp.  Stats.  1916,  §  1710,  p.  3586.) 

§  235.    Crimes  Under  Internal  Revenue  Laws. 

§i,  Act  July  5,  1884,  c,  225.  "That  no  person  shall  be 
prosecuted,  tried,  or  punished  for  any  of  the  various  offenses 
arising  under  the  internal  revenue  laws  of  the  United  States 
unless  the  indictment  is  found  or  the  information  insti- 
tuted within  three  years  next  after  the  commission  of  the 
offense,  in  all  cases  where  the  penalty  prescribed  may  be  im- 
prisonment in  the  penitentiary,  and  within  two  years  in  all 
other  cases :  Provided,  That  the  time  during  which  the  person 
committing  the  offense  is  absent  from  the  district  wherein  the 
same  is  committed  shall  not  be  taken  as  any  part  of  the  time 
limited  by  law  for  the  commencement  of  such  proceedings ;  Pro- 
vided furtlier,  That  the  provisions  of  this  act  shall  not  apply 
-  to  offenses  committed  prior  to  its  passage:  And  provided  fur- 
ther, That  where  a  complaint  shall  be  instituted  before  a  com- 
missioner of  the  United  States  within  the  period  above  limited, 
the  time  shall  be  extended  until  the  discharge  of  the  grand 
jury  at  its  next  session  within  the  district:  And  provided  fur- 
ther, That  this  act  shall  not  apply  to  offenses  committed  by 
officers  of  the  United  States."  (23  Stats.  122;  4  Fed.  Stats. 
Ann.,  2d  ed.,  p.  330;  3  U.  S.  Comp.  Stats.  1916,  §  1711, 
p.  3587.) 

§  236.    Seduction  of  Female  Passenger  on  Vessel. 

Part  §  281,  Grim.  Code.  "  ...  No  conviction  shall  be  had 
on  the  testimony  of  the  female  seduced,  without  other  evidence, 


§§  237-239,  Ch.  10     MANUAL  OF  FEDERAL  PROCEDURE.  150 

nor  unless  the  indictment  is  found  within  one  year  after  the 
arrival  of  the  vessel  on  which  the  offense  was  committed  at 
the  port  of  its  destination."  (Fed.  Stats.  Ann.,  2d  ed.,  title 
"Penal  Laws";  10 U.  S.  Comp.  Stats.  1916,  §  10,454,  p.  12,900.) 

§  237.    Violation  of  Naturalization  Laws. 

§  24,  Act  June  29,  1906,  c.  3592.  (Limit  for  prosecutions.1) 
"That  no  person  shall  be  prosecuted,  tried,  or  punished  for 
any  crime  arising  under  the  provisions  of  this  act  unless  the 
indictment  is  found  or  the  information  is  filed  within  five  years 
next  after  the  commission  of  such  crime."  (34  Stat^.  603; 
Fed.  Stats.  Ann.,  2d  ed.,  title  "Naturalization";  5  U.  S.  Comp. 
Stats.  1916,  §  4380,  p.  5255.) 

§  238.    Penalties  and  Forfeitures  Under  Federal  Laws. 

§  1047,  Rev.  Stats.  "No  suit  or  prosecution  for  any  pen- 
alty or  forfeiture,  pecuniary  or  otherwise,  accruing  under  the 
laws  of  the  United  States,  shall  be  maintained,  except  in  cases 
'where  it  is  otherwise  specially  provided,  unless  the  same  is 
commenced  within  five  years  from  the  time  when  the  penalty 
or  forfeiture  accrued:  Provided,  That  the  person  of  the 
offender,  or  the  property  liable  for  such  penalty  or  forfeiture, 
shall,  within  the  same  period,  be  found  within  the  United 
States;  so  that  the  proper  process  therefor  may  be  instituted 
and  served  against  such  person  or  property.2  "  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  330;  3  U.  S.  Comp.  '  Stats.  1916,  §  1712, 
p.  3588.) 

§239.    Penalties   and   Forfeitures   Under   Customs    Revenue 
Laws. 

§52,  Act  June  22,  1874,  c.  391.  "That  no  suit  or  action 
to  recover  any  pecuniary  penalty  or  forfeiture  of  property 
accruing  under  the  customs  revenue  laws  of  the  United  States 
shall  be  instituted  unless  such  suit  or  action  shall  be  com- 

*  United  States  v.  Smith  etc.  Co.,  184  Fed.  532;  United  States  v.  Guest, 

143  Fed.  456,  74  C.  C.  A.  590;  Carter  v.  New  Orleans  etc.  R.  Co.,  143  Fed. 

99,  74  C.  C.  A.  293;  United  States  v.  Witteman,  152  Fed.  377,  81  C.  C.  A. 

503;   City  of  Atlanta  v.  Chattanooga  Foundry  &  Pipe  Co.,  101  Fed.  900; 

'United  States  v.  One  Dark  Bay  Horse,  130  Fed.  240. 


151  STATUTES  OP  LIMITATIONS.        Ch.  10,  §§  240-242 

menced  within  three  years  after  the  time  when  such  penalty 
or  forfeiture  shall  have  accrued:  Provided,  That  the  time 
of  the  absence  from  the  United  States  of  the  person  subject 
to  such  penalty  or  forfeiture,  or  of  any  concealment  or  ab- 
sence of  the  property,  shall  not  be  reckoned  within  this 
period  of  limitation."  (18  Stats.  190;  2  Fed.  Stats.  Ann., 
2d  ed.,  p.  1183;  3  U.  S.  Comp.  Stats.  1916,  §  1713,  p.  3591.) 

§  240.    Settlements  for  Customs  Duties. 

§21,  Act  June  22,  1874,  c.  391.  "That  whenever  any 
goods,  wares,  and  merchandise  shall  have  been  entered  and 
passed  free  of  duty,  and  whenever  duties  upon  any  imported 
goods,  wares,  and  merchandise  shall  have  been  liquidated  and 
paid,  and  such  goods,  wares,  and  merchandise  shall  have  been 
delivered  to  the  owner,  importer,  agent,  or  consignee,  such 
entry  and  passage  free  of  duty  and  such  settlement  of  duties 
shall,  after  the  expiration  of  one  year  from  the  time  of  entry, 
in  the  absence  of  fraud  and  in  the  absence  of  protest  by  the 
owner,  importer,  agent,  or  consignee,  be  final  and  conclusive 
upon  all  parties."  (18  Stats.  190;  2  Fed.  Stats.  Ann.,  2d  ed., 
p.  1136;  6  U.  S.  Comp.  Stats.  1916,  §  5714,  p.  6820.) 

§211.    Forfeiture  or  Penalty  Under  Copyright  Laws — Crimi- 
nal Prosecutions. 

139,  Act  March  4,  1909,  c.  320.  "That  no  criminal  pro- 
ceeding shall  be  maintained  under  the  provisions  of  this  Act 
unless  the  same  is  commenced  within  three  years  after  the 
cause  of  action  arose."  (35  Stats.  1084;  2  Fed.  Stats.  Ann., 
2d  ed.,  p.  608;  9  U.  S.  Comp.  Stats.  1916,  §  9560,  p.  10,996.) 

§  242.    Forfeiture  and  Damage  Suits  for  False  Claims  Against 
United  States. 

13494,  Rev.  Stats.  "Every  such  suit  shall  be  commenced 
within  six  years  from  the  commission  of  the  act,  and  not  after- 
ward." (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  210;  6  U.  S.  Comp. 
Stats.  1916,  §  6415,  p.  7466.), 


§§  243-244,  Ch.  10     MANUAL  OF  FEDERAL  PROCEDURE.  152 

§  243.     Claims  Ag-ainst  United  States. 

§  156,  Jud.-Code  (Re-enacting  §  1069,  Rev.  Stats.}.  "Every 
claim  against  the  United  States,  cognizable  by  the  court  of 
claims,  shall  be  forever  barred,  unless  the  petition  setting 
forth  a  statement  thereof  is  filed  in  the  court,  or  transmitted 
to  it  by  the  secretary  of  the  Senate  or  the  clerk  of  the  House 
of  Representatives,  as  provided  by  law,  within  six  years  after 
the  claim  first  accrues:  Provided,  That  the  claims  of  married 
women  first  accrued  during  marriage,  of  persons  under  the 
age  of  twenty-one  years,  first  accrued  during  minority,  and 
of  idiots,  lunatics,  insane  persons,  and  persons  beyond  the  seas 
at  the  time  the  claim  accrued,  entitled  to  the  claim,  shall  not 
be  barred  if  the  petition  be  filed  in  the  court  or  transmitted, 
as  aforesaid,  within  three  years  after  the  disability  has  ceased ; 
but  no  other  disability  than  those  enumerated  shall  prevent 
any  claim  from  being  barred,  nor  shall  any  of  the  said  dis- 
abilities operate  cumulatively."  (36  Stats.  1139;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  668;  2  U.  S.  Comp.  Stats.  1916,  §  1142; 
Foster's  Federal  Practice,  5th  ed.,  p.  2314.) 

See  also  subd.  20,  §  24,  Jud.  Code,  quoted  in  §  94  supra. 

§  244.    Recovery  of  Taxes  Wrongfully  Collected. 

§  3227,  Rev.  Stats.  "No  suit  or  proceeding  for  the  recovery 
of  any  internal  tax  alleged  to  have  been  erroneously  or 
illegally  assessed  or  collected,  or  of  any  penalty  alleged  to 
have  been  collected  without  authority,  or  of  any  sum  alleged 
to  have  been  excessive  or  in  any  manner  wrongfully  collected, 
shall  be  maintained  in  any  court,  unless  the  same  is  brought 
within  two  years  next  after  the  cause  of  action  accrued: 
Provided,  That  actions  for  such  claims  which  accrued  prior 
to  June  6,  1872,  may  be  brought  within  one  year  from  said 
date;  and  that  where  any  such  claim  was  pending  before  the 
Commissioner,  as  provided  in  the  preceding  section,  an  action 
thereon  may  be  brought  within  one  year  after  such  decision, 
and  not  after.  But  no  right  of  action  which  was  already 
barred  by  any  statute  on  the  said  date  shall  be  revived  by  this 
section."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  1037;  6  U.  S.  Comp. 
Stats.  1916,  §  5950,  p.  6986.) 

§  3228,  Rev.  Stats.  "All  claims  for  the  refunding  of  any 
internal  tax  alleged  to  have  been  erroneously  or  illegally  as- 


153  STATUTES  OF  LIMITATIONS.        Ch.  10,  §§  245-246 

scssecl  or  collected,  or  of  any  penalty  alleged  to  have  been 
collected  without  authority,  or  of  any  sum  alleged  to  have 
been  excessive  or  in  any  manner  wrongfully  collected,  must 
be  presented  to  the  Commissioner  of  Internal  Revenue  within 
two  years  next  after  the  cause  of  action  accrued:  Provided, 
That  claims  which  accrued  prior  to  June  6,  1872,  may  be  pre- 
sented to  the  Commissioner  at  any  time  within  one  year  from 
said  date.  But  nothing  in  this  section  shall  be  construed  to 
revive  any  right  of  action  which  was  already  barred  by  any 
statute  on  that  date."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  1037; 
6  U.  S.  Comp.  Stats.  1916,  §  5951,  p.  6991.) 

§  245.    Suits  by  United  States  to  Vacate  Land  Patents. 

Part  §  8,  Act  March  3,  1891,  c.  561.  "That  suits  by  the 
United  States  to  vacate  and  annul  any  patent  heretofore  issued 
shall  only  be  brought  within  five  years  from  the  passage  of 
this  act,  and  suits  to  vacate  and  annul  patents  hereafter  issued 
shall  only  be  brought  within  six  years  after  the  date  of  the 
issuance  of  such  patents.  (26  Stats.  1099 ;  Fed.  Stats.  Ann., 
2d  ed.,  title  "Public  Lands";  5  U.  S.  Comp.  Stats.  1916, 
§  5114,  p.  6065.) 

§246.    Suits  by  United  States  to  Vacate  Railway  or  Wagon 
Road  Patents. 

§  1,  March  2,  1896,  c.  39.  "That  suits  by  the  United  States 
to  vacate  and  annul  any  patent  to  lands  heretofore  erroneously 
issued  under  a  railroad  or  wagon  road  grant  shall  only  be 
brought  within  five  years  from  the  passage  of  this  act,  and 
suits  to  vacate  and  annul  patents  hereafter  issued  shall  only 
be  brought  within  six  years  after  the  date  of  the  issuance  of 
such  patents,  and  the  limitation  of  section  eight  of  chapter 
five  hundred  and  sixty-one  of  the  acts  of  the  second  session 
of  the  Fifty-first  Congress  and  amendments  thereto  is  ex- 
tended accordingly  as  to  the  patents  herein  referred  to.  But 
no  patent  to  any  lands  held  by  a  bona  fide  purchaser  shall  be 
vacated  or  annulled,  but  the  right  and  title  of  such  purchaser 
is  hereby  confirmed :  Provided,  That  no  suit  shall  be  brought 
or  maintained,  nor  shall  recovery  be  had  for  lands  or  the 
value  thereof,  that  were  certified  or  patented  in  lieu  of  other 
lands  covered  by  a  grant  which  were  lost  or  relinquished  by 
the  grantee  in  consequence  of  the  failure  of  the  government  or 


§§  247-249,  Ch.  10    MANUAL  OP  FEDERAL  PROCEDURE.  154 

its  officers  to  withdraw  the  same  from  sale  or  entry."  (29 
Stats.  42;  Fed.  Stats.  Ann.,  2d  ed.,  title  "Public  Lands"; 
5  U.  S.  Comp.  Stats.  1916,  §  4901,  p.  5893.) 

§  247.    Suits  by  Patentee  of  Lands  Patented  to  Indians. 

§  1,  Act  May  31,  1902,  c.  946.  "That  in  all  actions  brought 
in  any  state  court  or  United  States  court  by  any  patentee,  his 
heirs,  grantees,  or  any  person  claiming  under  such  patentee, 
for  the  possession  or  rents  or  profits  of  lands  patented  in 
severalty  to  the  members  of  any  tribe  of  Indians  under  any 
treaty  between  it  and  the  United  States  of  America,  where  a 
deed  has  been  approved  by  the  Secretary  of  the  Interior  to 
the  land  sought  to  be  recovered,  the  statutes  of  limitations 
of  the  states  in  which  said  land  is  situate  shall  be  held  to 
apply,  and  it  shall  be  a  complete  defense  to  such  action  that 
the  same  has  not  been  brought  within  the  time  prescribed  by 
the  statutes  of  said  state  the  same  as  if  such  action  had  been 
brought  for  the  recovery  of  land  patented  to  others  than  mem- 
bers of  any  tribe  of  Indians."  (32  Stats.  284;  3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  847 ;  5  U.  S.  Comp.  Stats.  1916,  §  4216,  p.  5013.) 

§  248.    Under  Employers'  Liability  Acts  and  Under  Act  Limit- 
ing Hours  of  Labor. 

Part  §  6,  Act  April  22,  1908,  c.  149.  "That  no  action  shall 
be  maintained  under  this  act  unless  conynenced  within  two 
years  from  the  day  the  cause  of  action  accrued."  (35  Stats. 
66;  Fed.  Stats.  Ann.,  2d  ed.,  title  "Railroads";  8  U.  S.  Comp. 
Stats.  1916,  §  8662,  p.  9432.) 

Part  §  1,  Act  May  4,  1916,  c.  109.  In  prosecutions  under 
the  act  to  promote  the  safety  of  employees  and  travelers  upon 
railroads  by  limiting  the  hours  of  service  of  employees  thereon 
"no  suit  shall  be  brought  after  the  expiration  of  one  year 
from  the  date  of  such  violation."  (39  Stats.  61;  Pamphlet 
Supp.,  Fed.  Stats.  Ann.  No.  7,  p.  37;  8  U.  S.  Comp.  Stats.  1916, 
part  §  8679,  p.  9455.) 

§  249.    Action  for  Neglect  to  Prevent  Conspiracy  Against  Civil 
Rights. 

Part  §  1981,  Rev.  Stats.  "...  But  no  action  under  the 
provision  of  this  section  shall  be  sustained  which  is  not  com- 


155  STATUTES  OP  LIMITATIONS.        Ch.  10,  §§  250-253 

menced  within  one  year  after  the  cause  of  action  has  accrued." 
(2  Fed.  Stats.  Ann.,  2d  ed.,  p.  133 ;  4  U.  S.  Comp.  Stats.  1916, 
§  3934,  p.  4805.) 

§250.    Infringement  of  Patent. 

Part  §  4921,  Rev.  Stats.,  as  amended  §  6,  Act  March  3,  1897, 
c.  391.  "  .  .  ..  But  in  any  suit  or  action  brought  for  the  in- 
fringement of  any  patent,  there  shall  be  no  recovery  of  profits 
or  damages  for  any  infringement  committed  more  than  six 
years  before  the  filing  of  the  bill  of  complaint  or  the  issuing 
of  the  writ  in  such  suit  or  action,  and  this  provision  shall 
apply  to  existing  causes  of  action."  (Fed.  Stats.  Ann.,  2d  ed., 
title  "Patents";  8  U.  S.  Comp.  Stats.  1916,  §  9467,  p.  10,490.) 

§  251.  Infringement  of  Copyrights.  Actions  for  infringe- 
ments of  copyrights,  except  in  a  case  of  forfeiture  or  penalty  under 
copyright  laws  governed  by  §  39,  act  March  4,  1909,  c.  320  (§  241 
above),  are  governed  by  state  statutes  of  limitation.  (Brady  v. 
Daly,  175  U.  S.  158,  44  L.  Ed.  109,  20  Sup.  Ct.  66.) 

§  252.  Liability  of  Stockholders  of  National  Banks.  Under 
§  2  of  the  Act  June  30,  1876,  c.  156,  19  Stats.  63,  Fed.  Stats.  Ann., 
2d  ed.,  title  "National  Banks,"  9  U.  S.  Comp.  Stats.  1916,  §  9807, 
p.  12,039,  this  action  is  governed  by  the  state  statute  of  limitations, 
but  it  does  not  begin  to  run  until  the  amount  of  the  stockholders' 
liability  has  been  ascertained  and  assessed  by  the  comptroller  of 


currency.8 

§  253.    Interstate  Commerce  Act. 

Part  §  16,  Act  February  4,  1887,  c.  104,  as  amended  §  5,  Act 
March  2,  1889,  c.  382,  and  §  5,  Act  June  29,  1906,  c.  3591,  and 
§  13,  Act  June  18,  1910,  c.  309.  "All  complaints  for  the  re- 
covery of  damages  shall  be  filed  with  the  commission  within 
two  years  from  the  time  the  cause  of  action  accrues,  and  not 
after,  and  a  petition  for  the  enforcement  of  an  order  for  the 
payment  of  money  shall  be  filed  in  the  circuit  (now  district) 

3  Rankin  v.  Barton,  199  U.  S.  228,  50  L.  Ed.  163,  26  Sup.  Ct.  29.  See, 
also,  McClaine  v.  Ranlcin,  197  U.  S.  154,  3  Ann.  Cas.  500,  49  L.  Ed.  702,  25 
Sup.  Ct.  410. 


§  254,  Ch.  10  MANUAL,  OP  FEDERAL,  PROCEDURE.  156 

court  or  state  court  within  one  year  from  the  date  of  the  order, 
and  not  after."  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  477;  8  U.  S. 
Comp.  Stats.  1916,  §  8584,  part  (2),  p.  9222.) 

§  254.    Suspension  of  Statute  of  Limitations  Under  Trading 
With  the  Enemy  Act. 

Part  §  8,  Act  October  6,  1917,  c. .    "  (c)  The  running  of 

any  statute  of  limitations  shall  be  suspended  with  reference 
to  the  rights  or  remedies  on  any  contract  or  obligation  entered 
into  prior  to  the  beginning  of  the  war  between  parties  neither 
of  whom  is  an. enemy  or  ally  of  enemy,  and  containing  any 
promise  to  pay  or  liability  for  payment  which  is  evidenced 
by  drafts  or  other  commercial  paper  drawn  against  or  se- 
cured by  funds  or  other  property  situated  in  an  enemy  or  ally 
of  enemy  country,  and  no  suit  shall  be  maintained  on  any 
such  contract  or  obligation  in  any  court  within  the  United 
States  until  after  the  end  of  the  war,  or  until  the  said  funds 
or  property  shall  be  released  for  the  payment  or  satisfaction 
of  such  contract  or  obligation:  Provided,  "however,  That 
nothing  herein  contained  shall  be  construed  to  prevent  the 
suspension  of  the  running  of  the  statute  of  limitations  in  all 
other  cases  where  such  suspension  would  occur  under  exist- 
ing law."  (Pamphlet  Supp.,  Fed.  Stats.  Ann.  No.  12,  p.  131.) 


157  EVIDENCE.  Ch.  11 


CHAPTER  11. 

EVIDENCE. 
SEC. 

270.  In  General. 

271.  Statutes  of  United  States — Evidence  of — Little  and  Brown's  Edition. 

272.  Same — Supplement  of  Revised  Statutes. 

273.  Same — Richardson's  Supplement  of  Revised  Statutes. 

274.  Proof  State  and  Foreign  Legislative  Acts  and  State  Court  Records 

and  Proceedings. 

275.  Exemplified  Copies  Records  of  Public  Offices,  not  Appertaining  to  a 

Court  in  States  and  Territories. 

276.  Copies  of  Foreign  Records  Filed  in  Department  Offices  Relating  to 

Land  Titles  in  United  States. 

277.  Copies — Extracts  from  Journals  of  Congress  Certified. 

278.  Pamphlet  Copies  of  Statutes  and  Bound  Copies  of  Acts, 

279.  Printed  and  Bound  Copies  of  Acts. 

280.  Copies — Lost  or  Destroyed  Judicial  Records. 

281.  Restoration  of  Lost  or  Destroyed  Judicial  Records. 

282.  Copies — Lost  Supreme  Court  Record. 

283.  Restoration  of  Records — Service  of  Notice  on  Nonresidents. 

284.  Copies — Lost  Returns  and  Official  Papers — Judicial  Officers. 

285.  Restoration   of   Records   in   Which   United   States   are  Interested  by 

United  States  Attorneys. 

286.  Copies — Executive  Department  Records1,  etc. 
2-87.     Copies — Solicitor  of  the  Treasury  Records,  etc. 

288.  Copies — Comptroller  of  the  Currency  Records,  etc. 

289.  Copies — National  Bank  Organization   Certificates. 

290.  Copies — Bonds,  Contracts,  and  Other  Papers  of  United  States  in  Set- 

tlement of  Accounts  with  Government. 

291.  Copies — Treasury,  War,  Navy,  Records  in  Suits  Against  Delinquents. 

292.  Same — Certification  of  Copies  to  be  Made  by  Secretary  or  an  Assist- 

ant Secretary  of  the  Treasury  under  Seal  of  Department. 

293.  Copies — Treasury  Department  Books  and  Proceedings  in  Embezzlement 

Suits. 

294.  Copies — Department  of  the  Interior. 

295.  Copies — Postoffice  Records. 

296.  Copy — Postoffice  Department  Demand  on  Postmasten. 
2S7.     Copies — Land  Office  Records — Certification  of. 

298.  Subpoena  Dw.es  Tecum  to  Register  of  Land  Office. 

299,  Copies — Commissioner   of  Indian   Affairs — Certification   of. 


§  270,  Ch.  11  MANUAL  OF  FEDERAL  PROCEDURE.  158 

300.  Copies — Patent  Office  Records,  Letters  Patent,  etc. 

301.  Copies — Foreign  Letters  Patent. 

302.  Copies — Printed  Copies  of  Specifications  and  Drawings  of  Patents. 

303.  Copies — Patent  Office   Kecords — Trademarks. 

304.  Copies — United  States  Consular  Records. 

305.  Cop'ies — United  States  Clerks'  New  Records  in  Certain  States. 

306.  Copies — United  States  Clerks'  New  Records — North  Carolina. 

307.  Judicial  Notice  Taken  of  the  Seal  of  the  Department  of  Commerce 

and  Labor. 

308.  Burden  of  Proof — Seizure  Cases  under  Customs  Duties  Laws. 

S09.     Reports  of  Investigations  of  Accidents  from  Failure  of  Boilers' — Not 
Admissible   in   Damage   Suits. 

310.  Government  Paramount  Title  does  not  Affect  Mining  Titles — Possessory 

Action. 

311.  Publication   of  Interstate   Commerce   Reports   and   Decisions   as  Evi- 

dence. 

312.  Proof  of  Signature  and  Handwriting. 

313.  Things  as  Evidence  Under  Alaska  Prohibition  Laws. 

314.  Sufficiency  of  Evidence  to  Convict  Under  Alaska  Prohibition  Laws. 

315.  Prime  Facie  Evidence  Under  District  of  Columbia  Prohibition  Law. 

316.  Same — Payment  of  Special  Taxes. 

§  270.  In  General.  Equity  Rule  46  provides  that  "in  all  trials 
in  equity  the  testimony  of  witnesses  shall  be  taken  orally  in  open 
court,  except  as  otherwise  provided  by  statute  or  these  rules.  The 
court  shall  pass  on  the  admissibility  of  all  evidence  offered  as  in 
actions  at  law.  .  .  .  '  (See  chapter  50,  post.) 

§  861,  Rev.  Stats,  (quoted  §  595,  post),  provides  that  "the  mode 
of  proof  in  the  trials  of  actions  at  common  law  shall  be  by  oral  tes- 
timony and  by  examination  of  witnesses  in  open  court,  except  as 
hereinafter  provided." 

§  721,  Rev.  Stats.  (§  230,  supra),  provides  that,  except  as  other- 
wise provided,  the  laws  of  the  several  states  "shall  be  regarded  as 
thp  rules  of  decision  in  trials  at  common  law." 

The  last-mentioned  section  has  been  held  to  apply  to  rules  of  evi- 
dence prescribed  by  the  laws  of  the  state  in  which  the  federal  court 
was  sitting.1  The  laws  of  the  state  relating  to  evidence  means  not 
only  the  statutes  of  the  state,  but  also  the  decisions  of  its  highest 

i  Parker  v.  Moore.  Ill  Fed.  470. 


159  EVIDENCE.  Ch.  11,  §270 

courts  respecting  rules  of  evidence,2  but  not  as  to  common-law  rules 
of  evidence.3 

The  decided  tendency  in  both  law  and  equity  is  to  conform  to 
state  rules  of  evidence  as  is  indicated  by  the  new  rule  46,  above 
mentioned,  and  recent  amendment  §  858,  Rev.  Stats.,  as  to  com- 
petency of  witnesses.  (§  330,  post.) 

The  federal  courts  do  not,  however,  follow  the  state  practice, 
allowing  the  examination  of  a  party  before  trial,4  except  in  order- 
ing a  surgical  examination  of  the  person  of  the  plaintiff  in  an  ac- 
tion for  personal  injuries,5  and  not  then  when  there  is  no  state 
statute.6 

Discovery  by  the  production  of  books  and  papers  in  common-law 
actions  is  governed  by  §  724,  Rev.  Stats.  (§  571,  post),  and  in  equity 
by  Equity  Rule  58  (Chapter  43,  post). 

State  laws  have  been  followed  as  to  printed  copies  of  state  laws 
being  prima  facie  evidence  thereof.7  Section  905,  Rev.  Stats. 
(§  274  below),  provides  for  the  authentication  of  state  laws, 
although  it  has  not  been  held  mandatory  and  the  statutes  of  Penn- 
sylvania were  admitted  in  the  District  of  Columbia,  though  not  so 
authenticated.8 

So,  also,  the  state  law  was  followed  as  to  exemption  from  process 
of  a  witness  in  attendance  on  court.9 

But  state  laws  will  not  be  followed  where  the  federal  statutes 
make  other  provisions.10 

This  chapter  contains  a  number  of  special  federal  statutes  on 
evidence. 

2  Nashua  Savings  Bank  v.  Anglo-American  Land  etc.  Co.,  189  U.  S.  22&, 
47  L.  Ed.  782,  23  Sup.  Ct.  517. 

3  Union  Pac.  R.  Co.  v.  Yatea,  79  Fed.  588,  40  L.  E.  A.  553,  25  C.  C.  A. 
103. 

4  Ex  parte  Fisk,  113  U.  S.  713,  28  L.  Ed.  1117,  5  Sup.  Ct.  724. 

5  Camden  etc.  R.  Co.  v.  Stetson,  177  U.  S.  172,  44  L.  Ed.   721,  20  Sup. 
Ct  617 

e  Union  Pac  R.  Co.  r.  Botsford,  141  U.  S.  250,  35  L.  Ed.  734,  11  Sup.  Ct. 
1000. 

7  Beatrice  v.  Edminson,  117  Fed.  427,  54  C.  C.  A.  601. 

8  Commercial  &  Farmers'  Bank  v.  Patterson,  2  Cranch,  346,  Fed.  Caa.  No. 
3056. 

»  Ex  parte  Levi,  28  Fed.  651. 

10  Potter  v.  National  Bank,  102  U.  S.  165,  26  L.  Ed.  111. 


§§  271-274,  Ch.  11     MANUAL  OF  FEDERAL  PROCEDURE.  160 

§271.    Statutes   of  United   States — Evidence  of— Little  and 
Brown's  Edition. 

§  908,  Rev.  Stats.  "The  edition  of  the  Laws  and  Treaties  of 
the  United  States,  published  by  Little  &  Brown,  shall  be  com- 
petent evidence  of  the  several  public  and  private  acts  of  Con- 
gress, and  of  the  several  treaties  therein  contained,  in  all  the 
courts  of  law  and  equity  and  of  maritime  jurisdiction,  and  in 
all  the  tribunals  and  public  offices  of  the  United  States,  and 
of  the  several  states,  without  any  further  proof  or  authenti- 
cation thereof."  (Fed.  Stats.  Ann.,  2d  ed.,  title  "Statutes"; 
3  U.  S.  Comp.  Stats.  1916,  §  1522.) 

§  272.    Same — Supplement  of  Revised  Statutes. 

§5  of  Act  April  9,  1890,  c.  73.  <rThe  publication  herein 
authorized  shall  be  taken  to  be  prima  facie  evidence  of  the 
laws- therein  contained,  but  shall  not  change  nor  alter  any 
existing  law,  nor  preclude  reference  to  nor  control  in  case 
of  any  discrepancy,  the  effect  of  any  original  act  passed  by 
Congress."  (26  Stats.  50;  Fed.  Stats.  Ann.,  2d  ed.,  title 
"Statutes";  3  U.  S.  Comp.  Stats.  1916,  §  1531.) 

§273.    Same — Richardson's  Supplement  of  Revised  Statutes. 

Part  Joint  Resolution  June  7,  1880,  No.  44.  "The  publi- 
cation herein  authorized  shall  be  taken  to  be  prima  facie  evi- 
dence of  the  laws  therein  contained  in  all  the  courts  of  the 
United  States,  and  of  the  several  states  and  territories 
therein;  but  shall  not  preclude  reference  to,  nor  control,  in 
case  of  any  discrepancy,  the  effect  of  any  original  acts  as 
passed  by  Congress:  Provided,  That  nothing  herein  contained 
shall  be  construed  to  change  or  alter  any  existing  law."  (21 
Stats.  308;  Fed.  Stats.  Ann.,  2d  ed.,  title  "Statutes";  3  U.  S. 
Comp.  Stats.  1916,  §  1529.) 

§274.    Proof  State  and  Foreign  Legislative  Acts  and  State 
Court  Records  and  Proceedings. 

§  905,  Rev.  Stats.  ' '  The  acts  of  the  legislature  of  any  state 
or  territory,  or  of  any  country  subject  to  the  jurisdiction  of 
the  United  States,  shall  be  authenticated  by  having  the  seals 
of  such  state,  territory,  or  country  affixed  thereto.  The  rec- 


J61  EVIDENCE.  Ch.  11,  §275 

ords  and  judicial  proceedings  of  the  courts  of  any  state  or 
territory,  or  of  any  such  country,  shall  be  proved  or  admitted 
in  any  other  court  within  the  United  States,  by  the  altesta- 
tion  of  the  clerk,  and  the  seal  of  the  court  annexed,  if  there 
be  a  seal,  together  with  a  certificate  of  the  judge,  chief  jus- 
tice, or  presiding  magistrate,  that  the  said  attestation  is  in 
due  form.  And  the  said  records  and  judicial  proceedings  so 
authenticated  shall  have  such  faith  and  credit  given  to  them 
in  every  court  within  the  United  States  as  they  have  by  law 
or  usage  in  the  courts  of  the  state  from  which  they  are  taken. " 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  212;  3  U.  S.  Comp.  Stats.  1916, 
§  1519,  p.  2131.) 

§275.    Exemplified    Copies    Records    of    Public    Offices,    not 
Appertaining  to  a  Court  in  States  and  Territories. 

1906,  Rev.  'Stats.  "All  records  and  exemplifications  of 
books,  which  may  be  kept  in  any  public  office  of  any  state  or 
territory,  or  of  any  country  subject  to  the  jurisdiction  of  the 
United  States,  not  appertaining  to  a  court,  shall  be  proved  or 
admitted  in  any  court  or  office  in  any  other  state  or  territory, 
or  in  any  such  country,  by  the  attestation  of  the  keeper  of 
the  said  records  or  books,  and  the  seal  of  his  office  annexed, 
if  there  be  a  seal,  together  with  a  certificate  of  the  presiding 
justice  of  the  court  of  the  county,  parish,  or  district  in  which 
such  office  may  be  kept,  or  of  the  governor  or  secretary  of 
state,  the  chancellor  or  keeper  of  the  great  seal  of  the  state, 
or  territory,  or  country,  that  the  said  attestation  is  in  due 
form,  and  by  the  proper  officers.  If  the  said  certificate  is 
given  by  the  presiding  justice  of  a  court,  it  shall  be  further 
authenticated  by  the  clerk  or  prothonotary  of  the  said  court, 
who  shall  certify,  under  his  hand  and  the  seal  of  his  office, 
that  the  said  presiding  justice  is  duly  commissioned  and  quali- 
fied ;  or  if  given  by  such  governor,  secretary,  chancellor,  or 
keeper  of  the  great  seal,  it  shall  be  under  the  great  seal  of  the 
state,  territory,  or  country  aforesaid  in  which  it  is  made.  And 
the  said  records  and  exemplifications,  so  authenticated,  shall 
have  such  faith  and  credit  given  to  them  in  every  court  and 
office  within  the  United.  States  as  they  have  by  law  or  usage 
in  the  courts  or  offices  of  the  state,  territory,  or  country,  as 
aforesaid,  from  which  they  are  taken."  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  220;  3  U.  S.  Comp.  State.  1916,  §  1520,  p.  2475.) 

Manual — 11 


§§  276-278,  Ch.  11     MANUAL  OP  FEDERAL  PROCEDURE.  162 

§  276.     Copies  of  Foreign  Records  Filed  in  Department  Offices 
Relating  to  Land  Titles  in  United  States. 

1907,  Rev.  Stats.  "It  shall  be  lawful  for  any  keeper  or 
person  having  the  custody  of  laws,  judgments,  orders,  decrees, 
journals,  correspondence,  or  other  public  documents  of  any 
foreign  government  or  its  agents,  relating  to  the  title  to  lands 
claimed  by  or  under  the  United  States,  on  the  application  of 
the  head  of  one  of  the  departments,  the  Solicitor  of  the  Treas- 
ury, or  the  Commissioner  of  the  General  Land  Office,  to  au- 
thenticate copies  thereof  under  his  hand  and  seal,  and  to  cer- 
tify them  to  be  correct  and  true  copies  of  such  laws,  judgments, 
orders,  decrees,  journals,  correspondence,  or  other  public  docu- 
ments, respectively;  and  when  such  copies  are  certified  by  an 
American  minister  or  consul,  under  his  hand  and  seal  of  office, 
to  be  true  copies  of  the  originals,  they  shall  be  sealed  up  by 
him  and  returned  to  the  Solicitor  of  the  Treasury,  who  shall 
file  them  in  his  office,  and  cause  them  to  be  recorded  in  a  book 
to  be  kept  for  that  purpose.  A  copy  of  any  such  law,  judg- 
ment, order,  decree,  journal,  correspondence,  or  other  public 
document,  so  filed,  or  of  the  same  so  recorded  in  said  book, 
may  be  read  in  evidence  in  any  court,  where  the  title  to  land 
claimed  by  or  under  the  United  States  may  come  into  ques- 
tion, equally  with  the  originals."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  221 ;  3  U.  S.  Comp.  Stats.  1916,  §  1521.) 

§277.    Copies — Extracts  from  Journals  of  Congress  Certified. 

§  895,  Rev.  Stats.  "Extracts  from  the  journals  of  the 
Senate,  or  of  the  House  of  Representatives,  and  of  the  Execu- 
tive Journal  of  the  Senate  when  the  injunction  of  secrecy  is 
removed,  certified  by  the  secretary  of  the  Senate  or  by  the  clerk 
of  the  House  of  Representatives,  shall  be  admitted  as  evidence 
in  the  courts  of  the  United  States,  and  shall  have  the  same 
force  and  effect  as  the  originals  would  have  if  produced  and 
authenticated  in  court."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  208; 
3  U.  S.  Comp.  Stats.  1916,  §  1508.) 

§  278.    Pamphlet  Copies  of  Statutes  and  Bound  Copies  of  Acts. 

Part  §73,  Act  January  12,  1895,  c.  23.  "The  pamphlet 
copies  of  the  statutes  and  the  bound  copies  of  the  acts  of  each 
Congress  shall  be  legal  evidence  of  the  laws  and  treaties. 


163  EVIDENCE.  Ch.  11,  §§  279-281 

therein  contained  in  all  the  courts  of  the  United  States  and 
of  the  several  states  therein."  (28  Stats.  615;  Fed.  Stats. 
Ann.,  2d  ed.,  title  "Statutes";  7  U.  S.  Comp.  Stats.  1916, 
§  7073.) 

§  279.    Printed  and  Bound  Copies  of  Acts. 

§8,  Act  June  20,  1874,  c.  333.  "The  said  printed  copies 
of  the  said  acts,  of  each  session  and  of  the  said  bound  copies 
of  the  acts  of  each  Congress  shall  be  legal  evidence  of  the 
laws  and  treaties  therein  contained,  in  all  the  courts  of  the 
United  States  and  of  the  several  states  therein.  (18  Stats. 
113;  Fed.  Stats.  Ann.,  2d  ed.,  title  "Statutes";  3  U.  S.  Comp. 
Stats.  1916,  §  1525.) 

§  280.    Copies — Lost  or  Destroyed  Judicial  Records. 

§  899,  Rev.  Stats.-  "When  the  record  of  any  judgment,  de- 
cree, or  other  proceeding  of  any  court  of  the  United  States  is 
lost  or  destroyed,  any  party  or  person  interested  therein  may, 
on  application  to  such  court,  and  on  showing  to  its  satisfaction 
that  the  same  was  lost  or  destroyed  without  his  fault,  obtain 
from  it  an  order  authorizing  such  defect  to  be  supplied  by  a 
duly  certified  copy  of  the  original  record,  where  the  same  can 
be  obtained;  and  such  certified  copy  shall  thereafter  have,  in 
all  respects,  the  same  effect  as  the  original  record  would  have 
-  had."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  210;  3  U.  S.  Comp. 
Stats.  1916,  §  1513.) 

§  281.    Restoration  of  Lost  or  Destroyed  Judicial  Records. 

§  900,  Rev.  Stats.  "When  any  such  record  is  lost  or  de- 
stroyed, and  the  defect  cannot  be  supplied  as  provided  in  the 
preceding  section,  any  party  or  person  interested  therein  may 
make  a  written  application  to  the  court  to  which  the  record 
belonged,  verified  by  affidavit,  showing  such  loss  or  destruc- 
tion ;  that  the  same  occurred  without  his  fault  or  neglect ;  that 
certified  copies  of  such  record  cannot  be  obtained  by  him ;  and 
showing  also  the  substance  of  the  record  so  lost  or  destroyed, 
and  that  the  loss  or  destruction  thereof,  unless  supplied,  will 
or  may  result  in  damage  to  him.  The  court  shall  cause  said 
application  to  be  entered  of  record,  and  a  copy  of  it  shall  be 
served  personally  upon  every  person  interested  therein,  to- 


§§  282-284,  Ch.  11     MANUAL  OF  FEDERAL  PROCEDURE.  164 

gether  with  written  notice  that  on  a  day  therein  stated,  which 
shall  not  be  less  than  sixty  days  after  such  service,  said  appli- 
cation will  be  heard;  and  if,  upon  such  hearing,  the  court  is 
satisfied  that  the  statements  contained  in  the  application  are 
true,  it  shall  make  and  cause  to  be  entered  of  record  an  order  • 
reciting  the  substance  and  effect  of  said  lost  or  destroyed  rec- 
ord. Said  order  shall  have  the  same  effect,  so  far  as  concerns 
the  party  or  person  making  such  application  and  the  persons 
served  as  above  provided,  but  subject  tp  intervening  rights, 
which  the  original  record  would  have  had  if  the  same  had  not 
been  lost  or  destroyed."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  210; 
3  U.  S.  Comp.  Stats.  1916,  §  1514.) 

§  282.    Copies — Lost  Supreme  Court  Record. 

§  901,  Rev.  Stats.  "When  any  cause  has  been  removed  to 
the  Supreme  Court,  and  the  original  record  thereof  is  after- 
ward lost,  a  duly  certified  copy  of  the  record  remaining  in  said 
court  may  be  filed  in  the  court  from  which  the  cause  was  re- 
moved, on  motion  of  any  party  or  person  claiming  to  be  inter- 
ested therein ;  and  the  copy  so  filed  shall  have  the  same  effect 
as  the  original  record  would  have  had  if  the  same  had  not  been 
lost  or  destroyed. "  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  210 ;  3  U.  S. 
Comp.  Stats.  1916,  §  1515.) 

§  283.    Restoration  of  Records — Service  of  Notice  on  Non- 
residents. 

§  902,  Eev.  Stats.  "In  any  proceedings  in  conformity  with 
law  to  restore  the  records  of  any  court  of  the  United  States 
which  have  been  or  may  be  hereafter  lost  or  destroyed,  the 
notice  required  may  be  served  on  any  nonresident  of  the  dis- 
trict in  which  such  court  is  held  anywhere  within  the  juris- 
diction of  the  United  States,  or  in  any  foreign  country;  the 
proof  of  service  of  such  notice,  if  made  in  a  foreign  country,  to 
be  certified  by  a  minister  or  consul  of  the  United  States  in  such 
country,  under  his  official  seal."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  211;  3  U.  S.  Comp.  Stats.  1916,  §  1516.) 

§284.    Copies  —  Lost  Returns  and  Official  Papers  —  Judicial 
Officers. 

§  903,  Rev.  Stats.  "A  certified  copy  of  the  official  return, 
or  any  other  official  paper  of  the  United  States  attorney, 


165  EVIDENCE.  Ch.  11,  §285 

marshal,  or  clerk,  or  other  certifying  or  recording  officer  of 
any  court  of  the  United  States,  made  in  pursuance  of  law, 
and  on  file  in  any  department  of  the  government,  relating  to 
any  cause  or  matter  to  which  the  United  States  was  a  party 
in  any  such  court,  the  record  of  which  has  been  or  may  be  lost 
or  destroyed,  may  be  filed  in  the  court  to  which  it  apper- 
tains, and  shall  have  the  same  force  and  effect  as  if  it  were 
an  original  report,  return,  paper,  or  other  document  made  to 
or  filed  in  such  court;  and  in  any  case  in  which  the  names 
of  the  parties  and  the  date  and  amount  of  judgment  or  de- 
cree shall  appear  from  such  return,  paper,  or  document,  it 
shall  be  lawful  for  the  court  in  which  they  are  filed  to  issue 
the  proper  process  to  enforce  such  decree  or  judgment,  in 
the  same  manner  as  if  the  original  record  remained  in  said 
court.  And  in  all  cases  where  any  of  the  files,  papers,  or 
records  of  any  court  of  the  United  States  have  been  or  shall 
be  lost  or  destroyed,  the  files,  records,  and  papers  which,  pur- 
suant to  law,  may  have  been  or  may  be  restored  or  supplied 
in  place  of  such  records,  files,  and  papers,  shall  have  the 
same  force  and  effect,  to  all  intents  and  purposes,  as  the 
originals  thereof  would  have  been  entitled  to."  (3  Fed. 
Stats.  Ann.,  2d  ed.,  p.  211;  3  U.  S.  Comp.  Stats.  1916,  §  1517.) 

§  285.    Restoration  of  Records  in  Which  United  States  are 
Interested  by  United  States  Attorneys. 

§  904,  Rev.  Stats.  ' '  That  whenever  any  of  the  records  or 
files  in  which  the  United  States  are  interested  of  any  court 
of  the  United  States  have  been  or  may  be  lost  or  destroyed, 
it  shall  be  the  duty  of  the  attorney  of  the  United  States  for 
the  district  court  to  which  such  files  and  records  belong,  so 
far  as  the  judges  of  such  courts  respectively  shall  deem  it 
essential  to  the  interests  of  the  United  States  that  such  rec- 
ords and  files  to  (sic)  be  restored  or  supplied,  to  take  such 
steps,  under  the  direction  of  said  judges,  as  may  be  neces- 
sary to  effect  such  restoration  or  substitution,  including  such 
dockets,  indices,  and  other  books  and  papers  as  said  judge 
(s)  shall  think  proper.  Said  judges  may  direct  the  perform- 
ance, by  the  clerks  of  said  courts  respectively  and  by  the 
United  States  attorneys,  of  any  duties  incident  thereto;  and 
said  clerks  and  attorneys  shall  be  allowed  such  compensa- 
tion for  services  in  the  matter  and  for  lawful  disbursements 


§§  286-289,  Ch.  11     MANUAL  OP  FEDERAL  PROCEDURE.  166 

as  may  be  approved  by  the  Attorney  General  of  the  United 
States,  upon  a  certificate  by  the  judges  of  said  courts  stat- 
ing that  such  claim  for  services  and  disbursements  is  just 
and  reasonable ;  and  the  sum  so  allowed  shall  be  paid  out  of 
the  judiciary  fund."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  212; 
3  U.  S.  Comp.  Stats.  1916,  §  1518.) 

§286.     Copies — Executive  Department  Records,  etc. 

§882,  Rev.  Stats.  "Copies  of  any  books,  records,  papers, 
or  documents  in  any  of  the  Executive  Departments,  authenti- 
cated under  the  seals  of  such  Departments,  respectively,  shall 
be  admitted  in  evidence  equally  with  the  originals  thereof." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  197 ;  3  U.  S.  Comp.  Stats.  1916, 
§  1494.) 

§  2S7.    Copies — Solicitor  of  the  Treasury  Records,  etc. 

§883,  Rev.  Stats.  "Copies  of  any  documents,  records, 
books,  or  papers  in  the  office  of  the  solicitor  of  the  Treasury, 
certified  by  him  under  the  seal  of  his  office,  or,  when  his 
office  is  vacant,  by  the  officer  actmg  as  solicitor  for  the  time, 
shall  be  evidence  equally  with  the  originals."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  199;  3  U.  S.  Comp.  Stats.  1916,  §  1495.) 

§  288.     Copies — Comptroller  of  the  Currency  Records,  etc. 

§  884,  Rev.  Stats.  "Every  certificate,  assignment,  and  con- 
veyance .  executed  by  the  Comptroller  of  the  Currency,  in 
pursuance  of  law,  and  sealed  with  his  seal  of  office,  shall  be 
received  in  evidence  in  all  places  and  courts;  and  all  copies 
of  papers  in  his  office,  certified  by  him  and  authenticated 
by  the  said  seal,  shall  in  all  cases  be  evidence  equally  with 
the  originals.  An  impression  of  such  seal  directly  on  the 
paper  shall  be  as  valid  as  if  made  on  wax  or  wafer."  (3  Fed. 
Stats.  Ann.,  2d  ed.,  p.  199;  3  U.  S.  Comp.  Stats.  1916,  §  1496.) 

§289.     Copies — National  Bank  Organization  Certificates. 

§  885,  Rev.  Stats.  ' '  Copies  of  the  organization  certificate 
of  any  national  banking  association,  duly  certified  by  the 
Comptroller  of  the  Currency,  and  authenticated  by  his  seal 
of  office,  shall  be  evidence  in  all  courts  and  places  within 


167  EVIDENCE.  Ch.  11,  §§  290-291 

the  jurisdiction  of  the  United  States  of  the  existence  of  the 
association,  and  of  every  matter  which  could  be  proved  by 
the  production  of  the  original  certificate."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  199;  3  U.  S.  Comp.  St<*s.  1916,  §  1497.) 

§  290.     Copies — Bonds,  Contracts,  and  Other  Papers  of  United 
States  in  Settlement  of  Accounts  With  Government. 

Part  §  886,  Rev.  Stats.  "  .  .  .  And  all  copies  of  bonds, 
contracts,  or  other  papers  relating  to,  or  connected  with,  the 
settlement  of  any  account  between  the  United  States  and 
an  individual,  when  certified  by  the  register  or  by  such 
auditor,  as  the  case  may  be,  to  be  true  copies  of  the  originals 
on  file,  and  authenticated  under  the  seal  of  the  Department, 
may  be  annexed  to  such  transcripts,  and  shall  have  equal 
validity,  and  be  entitled  to  the  same  degree  of  credit  which 
would  be  due  to  the  original  papers  if  produced  and  authenti- 
cated in  court:  Provided,  That  where  suit  is  brought  upon 
a  bond  or  other  sealed  instrument,  and  the  defendant  pleads 
non  est  factum,  or  makes  his  motion  to  the  court,  verifying 
such  plea  or  motion  by  his  oath,  the  court  may  take  the 
same  into  consideration,  and,  if  it  appears  to  be  necessary 
for  the  attainment  of  justice,  may  require  the  production  of 
the  original  bond,  contract,  or  other  paper  specified  in  such 
affidavit."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  199;  3  U.  S.  Comp. 
Stats.  1916,  §  1498.) 

§291.    Copies — Treasury,    War,     Navy,    Records    in    Suits 
Against  Delinquents. 

Part  §  886,  Rev.  Stats.  "When  suit  is  brought  in  any  case 
of  delinquency  of  a  revenue  officer,  or  other  person  account- 
able for  public  money,  a  transcript  from  the  books  and  pro- 
ceedings of  the  Treasury  Department,  certified  by  the  regis- 
ter and  authenticated  under  the  seal  of  the  Department,  or, 
when  the  suit  involves  the  accounts  of  the  War  or  Navy 
Departments,  certified  by  the  auditors  respectively  charged 
with  the  examination  of  those  accounts,  and  authenticated 
under  the  seal  of  the  Treasury  Department,  shall  be  admitted 
as  evidence,  and  the  court  trying  the  cause  shall  be  authorized 
to  grant  judgment  and  award  execution  accordingly.  .  .  .  ' 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  199;  3  U.  S.  Comp.  Stats.  1916, 
§  1498.) 


§§  292-294,  Ch.  11     MANUAL  or  FEDERAL  PROCEDURE.  168 

§  292.  Same — Certification  of  Copies  to  be  Made  by  Secretary 
or  an  Assistant  Secretary  of  the  Treasury  Under  Seal  of  Depart- 
ment. 

§  10,  Act  March  £,  1895,  c.  177,  amending  §  17,  Act  July  31, 
1894,  c.  174.  "The  transcripts  from  the  books  and  proceed- 
ings of  the  Department  of  the  Treasury  and  the  copies  of 
bonds,  contracts  and  other  papers,  provided  for  in.  section 
eight  hundred  and  eighty-six  of  the  Revised  Statutes  t.hall 
hereafter  be  certified  by  the  Secretary  or  an  Assistant  Secre- 
tary of  the  Treasury  under  the  seal  of  the  Department." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  227;  3  U.  S.  Comp.  Stats.  1916, 
§  1499.) 

§  293.  Copies — Treasury  Department  Books  and  Proceedings 
in  Embezzlement  Suits. 

§  887,  Rev.  Stats.  "Upon  the  trial  of  any  indictment 
against  any  person  for  embezzling  public  moneys,  it  shall  be 
sufficient  evidence,  for  the  purpose  of  showing  a  balance 
against  such  person,  to  produce  a  transcript  from  the  books 
and  proceedings  of  the  Treasury  Department,  as  provided 
by  the  preceding  section."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  203 ; 
3  U.  S.  Comp.  Stats.  1916,  §  1500.) 

§294.    Copies — Department  of  the  Interior. 

§  888,  Rev.  Stats.  ' '  A  copy  of  any  return  of  a  contract 
returned  and  filed  in  the  returns-office  of  the  Department 
of  the  Interior,  as  provided  by  law,  when  certified  by  the 
clerk  of  the  said  office  to  be  full  and  complete,  and  when 
authenticated  by  the  seal  of  the  Department,  shall  be  evi- 
dence in  any  prosecution  against  any  officer  for  falsely  and. 
corruptly  swearing  to  the  affidavit  required  by  law  to  be 
made  by  such  officer  in  making  his  return  of  any  contract, 
as  required  by  law,  to  said  returns-office."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  204;  3  U.  S.  Comp.  Stats.  1916,  §  1501.) 

Under  Reclamation  Act,  Part  §  4,  Act  Aug.  9,  1912,  c.  278. 
"...  the  Secretary  of  the  Interior  shall  make  provision  for 
furnishing  copies  of  duly  authenticated  records  of  entries  upon 
payment  of  reasonable  fees,  which  copies  shall  be  admissible 
in  evidence,  as  are  copies  authenticated  under  section  eight 
hundred  and  eighty-eight  of  the  Revised  Statutes."  (37  Stats. 


169  EVIDENCE.  Ch.  11.  §§  295-296 

267;  Fed.  Stats.  Ann.,  2d  ed.,  title  "Waters";  5  U.  S.  Comp. 
Stats.  1916,  §  4731,  p.  5785.) 

Cowries  of  Records — Interior  Department  and  Its  Several  Bureaus. 
§§  3  and  4  Act  Aug.  24,  1912,  c.  370. 

§  3.  "That  all  authenticated  copies  furnished  under  this  act 
shall  be  admitted  in  evidence  equally  with  the  originals  thereof. 

§4.  "That  all  officers  who  furnish  authenticated  copies 
under  this  act  shall  attest  their  authentication  by  the  use  of 
an  official  seal,  which  is  hereby  authori/od  for  that  purpose." 
(37  Stats.  492;  3  Fed.  Stats.  Ann.,  2d  ed.,  p.  951;  1  U.  S. 
Comp.  Stats.  1916,  §  677.) 

§295.    Copies — Postoffice  Records. 

§  889,  Rev.  Stats.  ' '  Copies  of  the  quarterly  returns  of 
postmasters  and  of  any  papers  pertaining  to  the  accounts  in 
the  office  of  the  sixth  auditor,  and  transcripts  from  the  money- 
order  account  books  of  the  Postoffice  Department,  when  cer- 
tified by  the  sixth  auditor  under  the  seal  of  his  office,  shall 
be  admitted  as  evidence  in  the  courts  of  the  United  States, 
in  civil  suits  and  criminal  prosecutions;  and  in  any  civil  suit, 
in  case  of  delinquency  of  any  postmaster  or  contractor,  a 
statement  of  the  account,  certified  as  aforesaid,  shall  be  ad- 
mitted in  evidence,  and  the  court  shall  be  authorized  there- 
upon to  give  judgment  and  award  execution,  subject  to  the 
provisions  of  law  as  to  proceedings  in  such  civil  suits."  (3 
Fed.  Stats.  Ann.,  2d  ed.,  p.  204;  3  U.  S.  Comp.  Stats.  1916, 
§  1502.) 

§  296.     Copy — Postoffice  Department  Demand  on  Postmasters. 

§  890,  Rev.  Stats.  "In  all  suits  for  the  recovery  of  balances 
due  from  postmasters,  a  copy,  duly  certified  under  the  seal 
of  the  sixth  auditor,  of  the  statement  of  any  postmaster, 
special  agent,  or  other  person,  employed  by  the  Postmaster 
General  or  the  auditor  for  that  purpose,  that  he  has  mailed 
a  letter  to  such  delinquent  postmaster  at  the  postoffice  where 
the  indebtedness  accrued,  or  at  his  last  usual  place  of  abode; 
that  a  sufficient  time  has  elapsed  for  said  letter  to  have 
reached  its  destination  in  the  ordinary  course  of  the  mail; 
and  that  payment  of  such  balance  has  not  been  received, 


§  297,  Ch.  11  MANUAL  OF  FEDERAL  PROCEDURE.  170 

within  the  time  designated  in  his  instructions,  shall  be  re- 
ceived as  sufficient  evidence  in  the  courts  of  the  United 
States,  or  other  courts,  that  a  demand  has  been  made  upon 
the  delinquent  postmaster;  but  when  the  account  of  a  late 
postmaster  has  been  once  adjusted  and  settled,  and  a  demand 
has  been  made  for  the  balance  appearing  to  be  due,  and 
afterward  allowances  are  made  or  credits  entered,  it  shall  not 
be  necessary  to  make  a  further  demand  for  the  new  balance 
found  to  be  due."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  205 ;  3  U.  S. 
Comp.  Stats.  1916,  §  1503.) 

§  297.     Copies — Laud  Office  Records — Certification  of. 
By  Commissioner  or  Principal  Clerk. 

§  891,  Rev.  Stats.  "Copies  of  any  records,  books,  or  papers 
in  the  General  Land  Office,  authenticated  by  the  seal  and 
certified  by  the  Commissioner  thereof,  or,  when  his  office  is 
vacant,  by  the  principal  clerk,  shall  be  evidence  equally  with 
the  originals  thereof.  And  literal  exemplifications  of  any 
such  records  shall  be  held,  when  so  introduced  in  evidence, 
to  be  of  the  same  validity  as  if  the  names  of  the  officers  sign- 
ing and  countersigning  the  same  had  been  fully  inserted  in 
such  record."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  205;  3  U.  S. 
Comp.  Stats.  1916,  §  1504.) 

§  2469,  Rev.  Stats.  "The  Commissioner  of  the  General  Land 
Office  shall  cause  to  be  prepared,  and  shall  certify,  under  the 
seal  of  the  office,  such  copies  of  records,  books,  and  papers 
on  file  in  his  office  as  may  be  applied  for,  to  be  used  in  evi- 
dence in  courts  of  justice."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  222 ;  1  U.  S.  Comp.  Stats.  1916?  §  709.) 

§2470,  Rev.  Stats.  "Literal  exemplifications  of  any  rec- 
ords which  have  been  or  may  be  granted  in  virtue  of  the 
preceding  section  shall  be  deemed  of  the  same  validity  in 
all  proceedings,  whether  at  law  or  in  equity,  wherein  such 
exemplifications  are  adduced  in  evidence,  as  if  the  names 
of  the  officers  signing  and  countersigning  the  same  had  been 
fully  inserted  in  such  record."  (3  Fed.  Stats..  Ann.,  2d  ed., 
p.  222;  1  U.  S.  Comp.  Stats.  1916,  §  710.) 

By  Registers  and  Receivers  of  Land  Offices. 

Act  Mar.  22,  1904,  c.  748.  "The  transcripts  thus  furnished, 
when  duly  certified  to  by  them,  shall  be  admitted  as  evidence 


171  EVIDENCE.  Ch.  11,  §§  298-299 

in  all  courts  of  the  United  States  and  the  territories  thereof, 
and  before  all  officials  authorized  to  receive  evidence,  with  the 
same  force  and  effect  as  the  original  records."  (33  Stats.  144; 
Fed.  Stats.  Ann.,  2d  cd.,  title  " Public  Lands";  5  U.  S.  Comp. 
Stats.  1916,  §4474.) 

§298.    Subpoena  Duces  Tecum  to  Register  of  Land  Office. 

Act  April  19,  1904,  c.  1398.  "Whenever  the  register  of 
any  United  States  land  office  shall  be  served  with  a  sub- 
poena daces  tecum  or  other  valid  legal  process  requiring  him 
to  produce,  in  any  United  States  court  or  in  any  court  of 
record  of  any  state,  the  original  application  for  entry  of 
public  lands  or  the  final  proof  of  residence  and  cultivation 
or  any  other  original  papers  on  file  in  the  General  Land  Office 
of  the  United  States  on  which  a  patent  to  land  has  been  issued 
or  which  furnish  the  basis  for  suck  patent,  it  shall  be  the 
duty  of  such  register  to  at  once  notify  the  Commissioner  of 
the  General  Land  Office  of  the  service  of  such  process,  specify- 
ing the  particular  papers  he  is  required  to  produce,  and  upon 
receipt  of  such  notice  from  any  register  of  a  United  States 
land  office  the  Commissioner  of  the  General  Land  Office  shall 
at  once  transmit  to  such  register  the  original  papers  specified 
in  such  notice,  and  which  such  register  is  required  to  produce, 
and  to  attach  to  such  papers  a  certificate,  under  seal  of  his 
office,  properly  authenticating  them  as  the  original  papers 
upon  which  patent  was  issued ;  and  such  papers  so  authenti- 
cated shall  be  received  in  evidence  in  all  courts  of  the  United 
States  and  in  the  several  state  courts  of  the  states  of  the 
Union:  Provided,  That  the  Secretary  of  the  Interior  shall 
make  rules  and  regulations  to  secure  the  return  of  such  docu- 
ments to  the  General  Land  Office,  after  use  in  evidence,  with- 
out cost  to  the  United  States."  (33  Stats.  186;  Fed.  Stats. 
Ann.,  2d  ed.,  title  "Public  Lands";  1  U.  S.  Comp.  Stats. 
1916,  §701.) 

§  299.    Copies — Commissioner  of  Indian  Affairs — Certification  of. 

Part  §  3,  Act  July  26,  1892,  c.  256.  "Copies  of  any  public 
documents,  records,  books,  maps,  or  papers  belonging  to  or 
on  the  files  of  said  office  authenticated  by  the  seal  and  certified 


§§  300-303,  Ch.  11      MANUAL   OF   FEDERAL   PROCEDURE.  172 

by  the  Commissioner  thereof,  or  by  such  officer  as  may,  for 
the  time  being,  be  acting  as  or  for  such  Commissioner,  shall 
be  evidence  equally  with  the  originals  thereof."  (3  Fed. 
Stats.  Ann.,  2d  ed.,  p.  749;  1  U.  S.  Comp.  Stats.  1916,  §  720.) 

§  300.     Copies — Patent  Office  Records,  Letters  Patent,  etc. 

§  S92,  Rev.  Stats.  ' '  Written  or  printed  copies  of  any  rec- 
ords, books,  papers,  or  drawings  belonging  to  the  Patent  Office, 
and  of  letters  patent  authenticated  by  the  seal  and  certified 
by  the  Commissioner  or  acting  Commissioner  thereof,  shall  be 
evidence  in  all  cases  wherein  the  originals  could  be  evidence; 
and  any  person  making  application  therefor,  and  paying  the 
fee  required  by  law,  shall  have  certified  copies  thereof." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  206;  3  U.  S.  Comp.  Stats.  1916, 
§1505.) 

§301.    Copies — Foreign  Letters  Patent. 

§  893,  Rev.  Stats.  "Copies  of  the  specifications  and  draw- 
ings of  foreign,  letters  patent,  certified  as  provided  in  the 
preceding  section,  shall  be  prima  facie  evidence  of  the  fact 
of  the  granting  of  such  letters  patent,  and  of  the  date  and 
contents  thereof. "  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  207 ;  3  U.  S. 
Comp.  Stats.  1916,  §  1506.) 

§  302.     Copies — Printed  Copies  of  Specifications  and  Drawings 
of  Patents. 

§  894,  Rev.  Stats.  "The  printed  copies  of  specifications  and 
drawings  of  patents,  which  the  Commissioner  of  Patents  is  au- 
thorized to  print  for  gratuitous  distribution,  and  to  deposit 
in  the  capitols  of  the  states  and  territories,  and  in  the  clerk's 
offices  of  the  district  courts,  shall,  when  certified  by  him  and 
authenticated  by  the  seal  of  his  office,  be  received  in  all  courts 
as  evidence  of  all  matters  therein  contained."  (3  Fed.  Stats.. 
Ann.,  2d  ed.,  p.  208 ;  3  U.  S.  Comp.  State.  1916,  §  1507.) 

§303.     Copies — Patent  Office  Records — Trademarks. 

Part  §11  of  Act  Feb.  20,  1905,  c.  592.  "...  Written  or 
printed  copies  of  any  records,  books,  papers,  or  drawings  re- 
lating to  trademarks  belonging  to  the  Patent  Office,  and  of 


173  EVIDENCE.      ,  Ch.  11,  §§  304  -306 

certificates  of  registration,  authenticated  by  the  seal  of  the 
Patent  Office  and  certified  by  the  Commissioner  thereof,  shall 
be  evidence  in  all  cases  wherein  the  originals  could  be  evi- 
dence ;  and  any  person  making  application  therefor  and  pay- 
ing the  fee  required  by  law  shall  have  certified  copies  thereof. ' ' 
(33  Stats.  727;  Fed.  Stats.  Ann.,  2d  ed.,  title  "Trademarks"; 
9  U.  S.  Comp.  Stats.  1916,  §  9496.) 

§  304.     Copies — United  States  Consular  Records. 

§  896,  Rev.  Stats.  "Copies  of  all  official  documents  and 
papers  in  the  office  of  any  consul,  vice  consul,  or  commercial 
agent  of  the  United  States,  and  of  all  official  entries  in  the 
books  or  records  of  any  such  office,  certified  under  the  hand 
and  seal  of  such  officer,  shall  be  admitted  in  evidence  in  the 
courts  of  the  United  States."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  209 ;  3  U.  S.  Comp.  Stats.  1916,  §  1509.) 

§305.    Copies — United  States  Clerk's  New  Records  in  Certain 
States. 

§557,  Rev.  Stats.  "The  transcripts  into  new  books,  made 
by  the  clerks  of  the  district  courts  in  the  several  districts 
of  Texas,  Florida,  Wisconsin,  Minnesota,  Iowa,  and  Kansas, 
in  pursuance  of  the  act  of  June  twenty-seven,  eighteen  hun- 
dred and  sixty-four,  chapter  one  hundred  and  sixty-five,  from 
the  records  and  journals  transferred  by  them  respectively, 
under  the  said  act,  to  the  clerks  of  the  circuit  courts  in  said 
districts,  when  certified  by  the  clerks  respectively  making 
the  same  to  be  full  and  true  copies  from  the  original  books, 
shall  have  the  same  force  and  effect  as  records  as  the  origi- 
nals. And  the  certificates  of  the  clerks  of  said  circuit  courts, 
respectively,  of  transcripts  of  any  of  the  books  or  papers  so 
transferred  to  them,  shall  be  received  in  evidence  with  the 
like  effect  as  if  made  by  the  clerk  of  the  court  in  which  tin* 
proceedings  were  had."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  20!); 
3  U.  S.  Comp.  Stats.  1916,  §  1510.) 

§306.     Copies — United    States    Clerks'  New    Records — Nort'i 
Carolina. 

§  898,  Rev.  Stats.  "The  transcripts  into  new  books  made 
by  the  clerks  of  the  circuit  and  -district  courts  for  the  west- 


§§  307-308,  Ch.  11     MANUAL  OF  FEDERAL  PROCEDURE.  174 

em  district  of  North  Carolina,  in  pursuance  of  the  act  of 
June  four,  eighteen  hundred  and  seventy-two,  chapter  two 
hundred  and  eighty-two,  when  certified  by  the  clerks  respec- 
tively making  the  same  to  be  full  and  true  copies  from  the 
original  books,  shall  have  the  same  force  and  effect  as  records 
as  the  originals.  And  the  certificates  of  the  clerks  of  said 
circuit  and  district  courts  respectively,  of  transcripts  of  any 
of  the  said  transcribed  records,  shall  also  be  received  in  evi- 
dence with  the  like  effect  as  if  made  by  the  proper  clerk 
from  the  originals  from  which  such  records  were  transcribed." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  209;  3  U.  S.  Comp.  Stats.  1916, 
§  1511.) 

§  307.    Judicial  Notice  Taken  of  the  Seal  of  the  Department 
of  Commerce  and  Labor. 

Part§l,  Act  Feb.  14,  1903,  c.  552.  "The  said  Secretary 
shall  cause  a  seal  of  office  to  be  made  for  the  said  depart- 
ment of  such  device  as  the  President  shall  approve,  and  judi- 
cial notice  shall  be  taken  of  the  said  seal."  (32  Stats.  825; 
2  Fed.  Stats.  Ann.,  2d  ed.,  p.  475 ;  1  U.  S.  Comp.  Stats.  1916, 
§  853.) 

Part  §  17,  Act  Feb.  4, 1887,  as  Amended  ly  §  2,  Act  Aug.  19, 

1917,  c.  .     "The  commission  shall  have  an  official  seal, 

which  shall  be  judicially  noticed."  (Pamphlet  Supp.,  Fed. 
Stats.  Ann.  No.  12,  p.  81,  title  "Interstate  Commerce.") 

•')    UUv'ij'}   9flJ'"10   8JT19UJ    ')ut   (>1    .JOiS' J.»IJEW  Orfj   'IdlUflD 

§  308.    Burden  of  Proof — Seizure  Cases  Under  Customs  Duties 
Laws. 

§909,  Rev.  Stats.  "(Burden  of  proof,  when  it  lies  on 
claimant  in  seizure  cases:)  In  suits  or  informations  Torought, 
where  any  seizure  is  made  pursuant  to  any  act  providing 
for  or  regulating  the  collection  of  duties  on  imports  or  ton- 
nage, if  the  property  is  claimed  by  any  person,  the  burden 
of  proof  shall  lie  upon  such  claimant:  Provided,  That  prob- 
able cause  is  shown  for  such  prosecution,  to  be  judged  of  by 
the  court."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  322;  3  U.  S.  Comp. 
Stats.  1916,  §  1532.) 


175  EVIDENCE.  Ch,  11,  §§  309-312 

§  309.    Reports  of  Investigations  of  Accidents  from  Failure  of 
Boilers — Not  Admissible  in  Damage  Suits. 

Part  §5,  Act  Feb.  17,  1911,  c.  103.  "Neither  said  report 
nor  any  report  of  said  investigation  nor  any  part  thereof 
shall  be  admitted  as  evidence  or  used  for  any  ptfrpose  in  any 
suit  or  action  for  damages  growing  out  of  any  matter  men- 
tioned iu  said  report  or  investigation."  (36  Stats.  916;  Fed. 
Stats.  Ann.,  2d  ed.,  title  "Railroads";  8  U.  S.  Comp.  Stats. 
1916,  §8637  (2).) 

§  310.    Government  Paramount  Title  does  not  Affect  Mining 
Titles — Possessory  Action. 

§  910,  Rev.  Stats.  "No  possessory  action  between  persons, 
in  any  court  of  the  United  States,  for  the  recovery  of  any 
mining  title,  or  for  damages  to  any  such  title,  shall  be  affected 
by  the  fact  that  the  paramount  title  to  the  land  in  which 
such  mines  lie  is  in  the  United  States."  (Fed.  Stats.  Ann., 
2d  ed.,  title  "Mineral  Lands,  Mines  and  Mining";  3  U.  S. 
Comp.  Stats.  1916,  §  1533.) 

§311.    Publication  of  Interstate  Commerce  Reports  and  De- 
cisions as  Evidence. 

Part  §  14,  Act  Feb.  4, 1887,  c.  104,  24  Stats.  384,  as  amended 
§  4,  Act  March  2,  1889,  c.  382,  25  Stats.  859,  and  as  atwndcd 
§5,  Act  June  29,  1906,  c.  3591,  34  Stats.  589.  "...  The 
Commission  may  provide  for  the  publication  of  its  reports  and 
decisions  in  such  form  and  manner  as  may  be  best  adapted  for 
public  information  and  use,  and  such  authorized  publica- 
tions shall  be  competent  evidence  of  the  reports  and  decisions 
of  the  Commission  therein  contained  in  all  courts  of  the 
United  States  and  of  the  several  states  without  any  further 
proof  or  authentication  thereof.  The  Commission  may  also 
.cause  to  be  printed  for  early  distribution  its  annual  reports." 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  457  j  8  U.  S.  Comp.  Stats.  1916, 
§8582  (3),  p.  9195.) 

§312.     Proof  of  Signature  and  Handwriting. 

Act  February  26,  1913,  c.  79.  "In  any  proceeding  before 
a  court  or  judicial  officer  of  the  United  States  where  the 


§  313,  Ch.  11  MANUAL  OP  FEDERAL  PROCEDURE.  176 

genuineness  of  the  handwriting  of  any  person  may  be  involved, 
any  admitted  or  proved  handwriting  of  such  person  shall  be 
competent  evidence  as  a  basis  for  comparison  by  witnesses, 
or  by  the  jury,  court,  or  officer  conducting  such  proceeding,- 
to  prove  or  disprove  such  genuineness."  (37  Stats.  683 ;  3  Fed. 
Stats.  Ann.,  2d  ed.,  p.  227;  3  U.  S.  Comp.  Stats.  1916,  §  1471, 
Maxey  v.  U.  S.,  207  Fed.  327,  125  C.  C.  A.  77 ;  Short  v.  U.  S., 
221  Fed.  248,  137  C.  C.  A.  104.) 

§  313.    Tilings  as  Evidence  Under  Alaska  Prohibition  Laws. 

Part  §  17,  Act  Feb.  U,  1917,  c.  53.  "...  if  any  such  be 
found,  to  take  into  his  possession  and  safely  keep,  to  be  pro- 
duced as  evidence  when  required,  all  alcoholic  liquors  and  all 
the  means  of  dispensing  the  same,  also  all  the  paraphernalia 
or  part  of  the  paraphernalia  of  a  barroom  or  other  alcoholic 
liquor  establishment,  and  any  United  States  internal  revenue 
tax  receipt  or  certificate  for  the  manufacture  or  sale  of 
alcoholic  liquor,  effective  for  the  period  of  time  covering  the 
alleged  offense,  and  forthwith  report  all  the  facts  to  the  dis- 
trict attorney  or  his  deputy,  and  such  alcoholic  liquor  or  the 
means  for  dispensing  same,  or  the  paraphernalia  of  a  barroom 
or  other  alcoholic  liquor  establishment,  or  any  United  States 
internal-revenue  tax  receipt  or  certificate  for  the  sale  of 
alcoholic  liquor,  effective  as  aforesaid,  shall  be  prima  facie 
evidence  of  the  violation  of  the  provisions  of  this  Act." 
(Pamphlet  Supp.,  Fed.  Stats.  Ann.,  Nos.,  9-10,  p.  9,  title 
"Alaska";  U.  S.  Comp.  Stats.  §  3643J,  Adv.  Sheets,  238  Fed. 
No.  5,  p.  9.) 

§  26,  Act  Feb.  14,  1917,  c.  53.  Internal  Revenue  Special 
Tax  Stamp  or  Receipt — Use  as  Evidence.  "That  the  issuance 
by  the  United  States  of  any  internal  revenue  special  tax  stamp 
or  receipt  to  any  person  as  a  dealer  in  intoxicating  liquors 
shall  be  prima  facie  evidence  of  the  sale  of  intoxicating  liquors 
by  such  person  during  the  time  the  stamp  or  receipt  is  in 
force  and  effect. 

"A  copy  of  such  stamp  or  receipt  or  of  the  record  of  the 
issuance  thereof,  certified  to  by  a  United  States  internal- 
revenue  officer  having  charge  of  such  record,  is  admissible  as 
evidence  in  like  case  and  with  like  effect  as  the  original  stamp 
or  receipt."  (Pamphlet  Supp.,  Fed.  Stats.  Ann.,  Nos.  9-10, 


177  EVIDENCE.  Ch.  11,  §§  314-315 

p.  10,  title    "Alaska";    U.  S.    Comp.    Stats.  §  3G43nn,  Adv. 
Sheets,  238  Fed.  No.  5,  p.  12.) 

§  314.    Sufficiency  of  Evidence  to  Convict  Under  Alaska  Pro- 
hibition Laws. 

§  18,  Act  Feb.  14,  1917,  c.  53.  "That  it  shall  not  be  neces- 
sary, in  order  to  convict  any  person,  company,  house,  associa- 
tion, copartnership,  club,  or  corporation,  his,  its,  or  their  agents, 
officers,  clerks,  or  servants  of  manufacturing,  importing,  or 
selling  alcoholic  liquors,  to  prove  the  actual  manufacture, 
importing,  sale,  delivery  of,  or  payment  for  any  alcoholic 
liquors,  but  the  evidence  of  having  or  keeping  them  in  hand, 
stored  or  deposited,  taking  orders  for,  or  offering  to  sell  or 
barter,  or  exchanging  them  for  goods  or  merchandise,  or  giving 
them  away,  shall  be  sufficient  to  convict ;  nor  shall  it  be  neces- 
sary in  a  warrant,  information,  or  indictment  to  specify  the 
particular  kind  of  alcoholic  liquor  which  is  made  the  subject 
of  a  charge  of  violation  of  this  Act."  (Pamphlet  Supp.,  Fed. 
Stats.  Ann.,  Nos.  9-10,  p.  9,  title  "Alaska";  U.  S.  Comp. 
Stats.,  §  3643jj,  Adv.  Sheets,  238  Fed.  No.  5,  p.  10.) 

§  315.    Prima  Facie  Evidence  Under  District  of  Columbia  Pro- 
hibition Law. 

Part  §  10,  Act  of  Mch.  3,  1917,  c.  165.  Sale  of  Intoxicat- 
ing Liquors — District  of  Columbia;  Evidence.  "  ...  to 
take  into  his  possession  and  safely  keep,  to  be  produced  as 
evidence  when  required,  all  alcoholic  liquors  and  all  the  means 
of  dispensing  the  same,  also  all  the  paraphernalia  or  part  of 
the  paraphernalia  of  a  barroom  or  other  alcoholic  liquor  es- 
tablishment, and  any  United  States  internal  revenue  tax  re- 
ceipt or  certificate  for  the  manufacture  or  sale  of  alcoholic 
liquor  effective  for  the  period  of  time  covering  the  alleged 
offense,  and  forthwith  report  all  the  facts  to  the  corporation 
counsel  of  the  District  of  Columbia,  and  such  alcoholic  liquor 
or  the  means  for  dispensing  same,  or  the  paraphernalia  of  a 
barroom  or  other  alcoholic  liquor  establishment,  or  any  United 
States  internal  revenue  tax  receipt  or  certificate  for  the  sale 
of  alcoholic  liquor  effective  as  aforesaid,  shall  be  prima  facie 
evidence  of  the  violation  of  the  provisions  of  this  Act."  (U.  S. 
Comp.  Stats.,  §§  3369  ii,  Adv.  Sheets,  239  Fed.  No.  2,  p.  123.) 

Manual — 12 


§  316,  Ch.  11  MANUAL  OP  FEDERAL  PROCEDURE.  178 

§316.    Same — Payment  of  Special  Taxes. 

§  12,  Act  Melt.  3,  1917,  c.  165.  "That  the  payment  of  the 
special  tax  required  of  wholesale  or  retail  liquor  dealers  by 
the  United  States  by  any  person  or  persons  other  than  manu- 
facturers or  druggists  licensed  under  section  five  of  this  Act, 
within  the  District  of  Columbia,  shall  be  prima  facie  evidence 
that  such  person  or  persons  are  engaged  in  keeping  and  sell- 
ing, offering  and  exposing  for  sale  alcoholic  liquors  contrary 
to  the  provisions  of  this  Act,  and  a  certificate  from  the  collector 
of  internal  revenue,  his  agents,  clerks,  or  deputies  showing 
the  payment  of  such  tax,  and  the  name  or  names  of  person 
to  whom  issued,  and  the  names  of  the  person  or  persons,  if 
any,  associated  with  the  person  to  whom  such  tax  receipt  is 
issued,  shall  be  sufficient  evidence  of  the  payment  of  such  tax 
and  of  the  association  of  such  persons  for  the  selling  and 
keeping,  offering  and  exposing  for  sale  of  liquors  contrary  to 
the  provisions  of  this  Act  in  all  trials  or  legal  inquiries." 
(U.  S.  Comp.  Stats.,  §  3369jj,  Adv.  Sheets,  239  Fed.  No.  2, 
p.  124.) 


179  WITNESSES.  Ch.  12 

CHAPTER  12. 

WITNESSES. 
SEC. 

330.  Competence  of  Witnesses  Determined  by  State  Laws. 

331.  Competency  of  Witnesses  in  Prosecutions  Under  Alaska  Prohibition 

Laws. 

332.  Perjury  not  Now  a  Disqualification. 

333.  Not  Disqualified  by  Claiming  Compensation  Under  Customs  Revenue 

Laws. 

334.  Officers  and  Informers  not  Disqualified  in  Suits  for  Fines,  Penalties, 

or  Forfeitures. 

335.  Immunity   of   Witnesses   in   Cases  Under    Commerce    and   Anti-trust 

Laws. 

336.  Immunity  in  Criminal  Cases. 

337.  Same — Testimony  Given  Before  Congress. 

338.  Defendant  as  Witness  in  Criminal  Proceedings. 

339.  Compulsory  Process  for  Witnesses  in  Criminal  Cases. 

340.  Recognizance  of  Witnesses — Criminal  Cases. 

341.  Same — In  Vermont. 

342.  Same — On  Behalf  of  the  United  States  by  District  Attorney. 

343.  Subpoena  for  Witnesses  in  Another  District. 

344.  Subpoena  and  Attendance  of  Witnesses  for  United  States. 

345.  Subpoena  for  Witnesses  for  Indigent  Defendant  in  Criminal  Cases. 

346.  Enforcing  Attendance  and  Testimony  of  Witnesses. 

347.  Oourt's  Power  to  Punish  Witnesses  for  Contempt. 

348.  Fees  and  Mileage  of  Witnesses  Who  Testify  on  Letters  Rogatory. 

349.  Amount  of  Fees  and  Mileage  of  Witnesses. 

350.  Fees  and  Mileage  in  Certain  States — Double  Mileage  Prohibited. 

351.  Subpoena  for  Witnesses  in  Contested  Patent  Cases. 

352.  Enforcing  Attendance  and  Testimony  of  Witnesses  in  Patent  Cases. 

353.  Fees  of  Witnesses  in  Patent  Cases. 

354.  Subpoena  to  Witnesses  in  Claim  Cases  Against  United  |5tates  Pend- 

ing in  Departments. 

355.  Enforcing  Attendance  and   Testimony  of  Witnesses  in   Claim   Cases 

Against   United   States   Pending  in   Departments. 

356.  Fees  of  Witnesses  in  Claim  Cases  Against  United  States  Pending  in 

Departments. 

357.  Compulsory  Attendance  of  Witnesses  Under  Interstate  Commerce  Act. 

358.  Compulsory  Attendance  of  Witnesses  Under  Income  Tax  Law. 

359.  Administration  of  Oaths. 

360.  Discovery  Under  Act  for  National  Security  and  Defense   Stimulating 

Agriculture. 

361.  Compelling    Attendance    of    Witnesses,    etc.,    Under    Act    Establishing 

Bureau  of  War  Risk  Insurance. 


§§  330-332,  Ch.  12     MANUAL  OF  FEDERAL  PROCEDURE.  180 

§  330.    Competence  of  Witnesses  Determined  by  State  Laws. 

'  §  858,  Rev.  Stats.  ' '  The  competency  of  a  witness  to  testify 
in  any  civil  action,  suit,  or  proceeding  in  the  courts  of  the 
United  States  shall  be  determined  by  the  laws  of  the  state 
or  territory  in  which  the  court  is  held."  (Fed.  Stats.  Ann., 
2d  ed.,  title  "Witnesses";  3  U.  S.  Comp.  Stats.  1916,  §  1464.) 

The  phrase  "civil  actions"  includes  all  judicial  controversies 
in  which  the  rights  of  property  are  involved  whether  between 
private  parties  or  such  parties  and  the  government.1  An  objec- 
tion to  the  competency  of  a  witness  is  waived,  where  such  objection 
was  not  made  at  the  time  the  witness  was  sworn  nor  at  any  time 
during  trial.2 

§  331.  Competency  of  Witnesses  in  Prosecutions  Under  Alaska 
Prohibition  Laws. 

Part  §  16,  Act  Feb.  14,  1917,  c. .    "...  in  all  cases 

the  members,  shareholders,  associates  or  employees  in  any  club 
or  association  mentioned  in  this  section  shall  be  competent 
witnesses  to  prove  any  violations  of  the  provisions  of  this  sec- 
tion of  this  Act,  or  of  any  fact  tending  thereto ;  and  no  person 
shall  be  excused  from  testifying  as  to  any  offense  committed 
by  another  against  any  of  the  provisions  of  this  Act  by  reason 
of  his  testimony  tending  to  criminate  himself,  but  the  tes- 
timony given  "by  such  person  shall  in  no  case  be  used  against 
him.  ..."  (Pamphlet  Supp.,  Fed.  Stats.  Ann.,  Nos.  9-10, 
p.  6,  title  "Alaska.") 

§  332.  Perjury  not  Now  a  Disqualification.  §  125  of  the  Grim. 
Code,  Fed.  Stats.  Ann.,  2d  ed.,  title  "Penal  Laws,"  10  U.  S.  Comp. 
Stats.  1916,  §  10,295,  supersedes  §  5392,  Rev.  Stats.,  making  perjury 
of  a  witness  a  disqualification.  The  new  provision  omits  to  make 
such  a  witness  incompetent.  So,  also,  subornation  of  perjury  would 
not  disqualify  a  witness  under  §  126  of  the  Crim.  Code.  (Fed. 
Stats.  Ann.,  2d  ed.,  title  "Penal  Laws";  10  U.  S.  Comp.  Stats. 
1916,  §  10,296.) 

1  Green  v.  United  States,  9  Wall.  (U.  S.)  655,  19  L.  Ed.  806;  United  States 
v.  Ten  Thousand  Cigars,  Woolw.  123,  Fed.  Gas.  16.451. 

2  Bise  v.  United  States,  144  Fed.  374,  7  Ann.  Caa.  165,  74  C.  C.  A.  1. 


181  WITNESSES.  Ch.  12,  §§  333-336 

§  333.    Not   Disqualified   by   Claiming   Compensation   Under 
Customs  Revenue  Laws. 

§  8,  Act  June  22,  1874,  c.  391.  "That  no  officer,  or  other 
person  entitled  to  or  claiming  compensation  under  any  pro- 
vision of  this  act,  shall  be  thereby  disqualified  from  becoming 
a  witness  in  any  action,  suit,  or  proceeding  for  the  recovery, 
mitigation,  or  remission  thereof,  but  shall  be  subject  to  ex- 
amination and  cross-examination  in  like  manner  with  other 
witnesses,  without  being  thereby  deprived  of  any  right,  title, 
share,  or  interest  in  any  fine,  penalty,  or  forfeiture  to  which 
such  examination  may  relate;  and  in  every  such  case  the  de- 
fendant or  defendants  may  appear  and  .testify  and  be  ex- 
amined and  cross-examined  in  like  manner."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  225;  8  U.  S.  Comp.  Stats.  1916,  §  5802.) 

§334.    Officers  and   Informers  not   Disqualified  in   Suits  for 
Fines,  Penalties  or  Forfeitures. 

§  5295,  Rev.  Stats.  "Any  officer  or  other  person  entitled  to 
or  interested  in  a  part  or  share  of  any  fine,  penalty,  or  for- 
feiture incurred  under  any  law  of  the  United  States,  may  be 
examined  as  a  witness  in  any  of  the  proceedings  for  the  re- 
covery of  such  fine,  penalty,  or  forfeiture  by  either  of  the 
parties  thereto,  and  such  examination  shall  not  deprive  such 
witness  of  his  share  or  interest  in  such  fine,  penalty,  or  for- 
feiture." (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  338;  10  U.  S.  Comp. 
Stats.  1916,  §  10,137.) 

§  335.    Immunity  of  Witnesses  in  Cases  Under  Commerce  and 
Anti-trust  Laws. 

Act  June  30,  1906,  c.  3920.  Extends  "only  to  a  natural 
person  who,  in  obedience  to  a  subpoena,  gives  testimony 
under  oath  or  produces  evidence,  documentary  or  otherwise, 
under  oath."  (34  Stats.  798;  Fed.  St&U  Ann.,  2d  ed.,  title 
"Witnesses";  6  U.  S.  Comp.  Stats.  1916,  §  8580.) 

§  336.    Immunity  in  Criminal  Cases. 

Part  5th  Amend.  U.  S.  Const.  "Xo  person  .  .  .  shall  be 
compelled  in  any  criminal  case  to  be  a  witness  against  him- 
self." (11  U.  S.  Comp.  Stats.,  1916,  p.  14,320.) 


§§  337-339,  Ch.  12     MANUAL  OP  FEDERAL  PROCEDURE.  182 

The  seizure  or  compulsory  production  of  a  man's  private  papers 
to  be  used  against  him  is  equivalent  to  compelling  him  to  be  a 
witness  against  himself.3 

In  Prosecutions  Under  Prohibition  Laws  District  of  Columbia. 

Part  §  7,  Act  March  3,  1917,  c.  165.  "And  no  person  shall 
be  excused  from  testifying  as  to  any  offense  committed  by 
another  against  any  of  the  provisions  of  this  Act  by  reason  of 
his  testimony  tending  to  criminate  himself,  but  the  testimony 
given  by  such  person  shall  in  no  case  be  used  against  him." 
(U.  S.  Comp.  Stats.,  §  3369h,  Adv.  Sheets,  239  Fed.  No.  2, 
p.  122.) 

§337.    Same — Testimony  Given  Before  Congress. 

§  859,  Rev.  Stats.  "No  testimony  given  by  a  witness  be- 
fore either  House,  or  before  any  committee  of  either  House 
of  Congress,  shall  be  used  as  evidence  in  any  criminal  pro- 
ceeding against  him  in  any  court,  except  in  a  prosecution 
for  perjury  committed  in  giving  such  testimony.  But  an 
official  paper  or  record  produced  by  him  is  not  within  the 
said  privilege."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  166;  3  U.  S. 
Comp.  Stats.  1916,  §  1467.) 

§  338.    Defendant  as  Witness  in  Criminal  Proceeding's. 

Act  March  16,  1878,  c.  37.  "That  in  the  trial  of  all  indict- 
ments, informations,  complaints,  and  other  proceedings  against 
persons  charged  with  the  commission  of  crimes,  offenses,  and 
misdemeanors  in  the  United  States  courts,  territorial  courts, 
and  courts-martial,  and  courts  of  inquiry,  in  any  state  or 
territory,  including  the  District  of  Columbia,  the  person  so 
charged  shall,  at  his  own  request  but  not  otherwise,  be  a  com- 
petent witness.  And  his  failure  to  make  such  request  shall 
not  create  any  presumption  against  him."  (20  Stats.  30; 
Fed.  Stats.  Ann.,  2d  ed.,  title  "Witnesses";  3  U.  S.  Comp. 
Stats.  1916,  §  1465.) 

§339.     Compulsory  Process  for  Witnesses  in  Criminal  Cases. 

Part  Sixth  Amend.  U.  S.  Const.  "In  all  criminal  prosecu- 
tions, the  accused  shall  enjoy  the  right  ...  to  be  confronted 

3  Boyd  v.  United  States,  116  U.  S.  616,  29  L.  Ed.  746,  6  Sup.  Ct.  524, 
Ip  re  Kanter?  117  Fed.  356, 


133  WITNESSES.  Ch.  12,  §§  340-342 

with  the  witnesses  against  him ;  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor."  (11  U.  S.  Comp.  Stats. 
1916,  p.  14,388.) 

§  340.    Recognizance  of  Witnesses — Criminal  Cases. 

§  879,  Rev.  Stats.  "Any  judge  or  other  officer  who  may  be 
authorized  to  arrest  and  imprison  or  bail  persons  charged 
with  any  crime  or  offense  against  the  United  States  may,  at 
the  hearing  of  any  such  charge,  require  of  any  witness  pro- 
duced against  the  prisoner,  on  pain  of  imprisonment,  a  recog- 
nizance, with  or  without  sureties,  in  his  discretion,  for  his 
appearance  to  testify  in  the  case.  And  where  the  crime  or 
offense  is  charged  to  have  been  committed  on  the  high  seas, 
or  elsewhere  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  he  may,  in  his  discretion,  require  a  like 
recognizance,  with  such  sureties  as  he  may  deem  necessary, 
of  any  witness  produced  in  behalf  of  the  accused,  whose  tes- 
timony in  his  opinion  is  important,  and  is  in  danger  of  being 
otherwise  lost. ' '  (Fed.  Stats.  Ann.,  2d  ed.,  title  ' '  Witnesses ' ' ; 
3  U.  S.  Comp.  Stats.  1916,  §  1490.) 

§  341.    Same — In  Vermont. 

§880,  Rev.  Stats.  "In  the  district  of  Vermont,  all  recog- 
nizances of  witnesses  taken  by  any  magistrate  in  said  district, 
for  their  appearance  to  testify  in  any  case  cognizable  either 
in  the  district  or  circuit  court  thereof,  shall  be  to  the  circuit 
court  next  thereafter  to  be  held  in  the  said  district."  {Fed. 
Stats.  Ann.,  2d  ed.,  title  "Witnesses"}  3  U.  S.  Comp.  Stats. 
1916,  §  1491.) 

§342.    Same — On   Behalf  of  the   United   States  by   District 
Attorney. 

§  881,  Rev.  Stats.  "Any  judge  of  the  United  States,  on  the 
application  of  a  district  attorney,  and  on  being  satisfied  by 
proof  that  the  testimony  of  any  person  is  competent  and  will 
be  necessary  on  the  trial  of  any  criminal  proceeding  in  which 
the  United  States  are  parties  or  are  interested,  may  compel 
such  person  to  give  recognizance,  with  or  without  sureties, 
at  his  discretion,  to  appear  to  testify  therein;  and,  for  that 
purpose,  may  issue  a  warrant  against  such  person,  under  hjs; 


§§  343-344,  Ch.  12     MANUAL  OF  FEDERAL  PROCEDURE.  181 

hand,  with  or  without  seal,  directed  to  the  marshal  or  other 
officer  authorized  to  execute  process  in  behalf  of  the  United 
States,  to  arrest  and  bring  before  him  such  person.  If  the 
person  so  arrested  neglects  or  refuses  to  give  recognizance  in 
the  manner  required,  the  judge  may  issue  a  warrant  of  com- 
mitment against  him,  and  the  officer  shall  convey  him  to  the 
prison  mentioned  therein.  And  the  said  person  shall  remain 
in  confinement  until  he  is  removed  to  the  court  for  the  pur- 
pose of  giving  his  testimony,  or  until  he  gives  the  recognizance 
required  by  said  judge."  (Fed.  Stats.  Ann.,  2d  ed.,  title 
"Witnesses";  3  U.  S.  Comp.  Stats.  1916,  §  1492.) 

§  343.     Subpoena  for  Witnesses  in  Another  District. 

§  876,  Rev.  Stats.  "Subpoenas  for  witnesses  who  are  re- 
quired to  attend  a  court  of  the  United  States,  in  any  district, 
may  run  into  any  other  district:  Provided,  That  in  civil 
causes  the  witnesses  living  out  of  the  district  in  which  the. 
court  is  held  do  not  live  at  a  greater  distance  than  one  hun- 
dred miles  from  the  place  of  holding  the  same."  (Fed.  Stats. 
Ann.,  2d  ed.,  title  "Witnesses";  3  U.  S.  Comp.  Stats.  1916, 
§1487.) 

In  civil  actions  if  a  witness  lives  out  of  the  district  at  a  greater 
distance  than  one  hundred  miles  from  the  place  of  holding  court, 
his  testimony  must  be  taken  by  deposition.4 

In  criminal  cases  there  seems  to  be  no  limit.5 

§  344.  Subpoena  and  Attendance  of  Witnesses  for  United 
States. 

§  577,  Rev.  Stats.  ' '  Witnesses  who  are  required  to  attend 
any  term  of  a  [circuit  or]  district  court  on  the  part  of  the 
United  States  shall  be  subpoenaed  to  attend  to  testify  gener- 
ally on  their  behalf,  and  not  to  depart  the  court  without  leave 
thereof,  or  of  the  district  attorney;  and  under  such  process 
they  shall  appear  before  the  grand  or  petit  jury,  or  both,  as 
they  may.be  required  by  the  court  or  district  attorney."  (Fed. 
Stats.  Ann.,  2d  ed.,  title  "Witnesses";  3  U.  S.  Comp.  Stats. 
1916,  §  1488.) 

4  Smith  v.  Chicago  etc.  E.  Co.,  38  Fed.  321. 

5  United  States  v.  Potter,  Boyce  U.  S.  Pr.  98,  27  Fed.  Gas.  No.  16,075. 


185  WITNESSES.  Ch.  12,  §§  345-348 

§  345.    Subpoena   for   Witnesses   for   Indigent  Defendant  in 
Criminal  Cases. 

§875,  Rev.  Stats.  "Whenever  any  person  indicted  in  a 
court  of  the  United  States  makes  affidavit,  setting  forth  that 
there  are  witnesses  whose  evidence  is  material  to  his  defense; 
that  he  cannot  safely  go  to  trial  without  them ;  what  he  ex- 
pects to  prove  by  each  of  them ;  that  they  are  within  the  dis- 
trict in  which  the  court  is  held,  or  within  one  hundred  miles 
of  the  place  of  trial;  and  that  he  is  not  possessed  of  sufficient 
means,  and  is  actually  unable  to  pay  the  fees  of  such  witnesses, 
the  court  in  term,  or  any  judge  thereof  in  vacation,  may  order 
that  such  witnesses  be  subpoenaed  if  found  within  the  limits 
,  aforesaid.  In  such  case  the  costs  incurred  by  the  process  and 
the  fees  of  the  witness  shall  be  paid  in  the  same  manner  that 
similar  costs  and  fees  are  paid  in  case  of  witnesses  subpoenaed 
in  behalf  of  the  United  States."  (Fed.  Stats.  Ann.,  2d  ed., 
title  "Witnesses";  3  U.  S.  Comp.  Stats.  1916,  §  1489.) 

§346.    Enforcing  Attendance  and  Testimony  of  Witnesses. 

§  4073,  Rev.  Stats.  ' '  If  any  person  shall  refuse  or  neglect 
to  appear  at  the  time  and  place  mentioned  in  the  summons 
issued,  in  accordance  with  section  forty  hundred  and  seventy- 
one,  or  if  upon  his  appearance  he  shall  refuse  to  testify,  he 
shall  be  liable  to  the  same  penalties  as  would  be  incurred  for 
a  like  offense  on  the  trial  of  a  suit  in  the  district  court  of  the 
United  States."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  223;  1  U.  S. 
Comp.  Stats.  1916,  §  7621.) 

§347.    Court's  Power  to  Punish  Witnesses  for  Contempt. 

§  268,  Jud.  Code  (Re-enacting  §  725,  Rev.  Stats.).  "The  said 
courts  shall  have  power  ...  to  punish,  by  fine  or  imprison- 
ment, at  the  discretion  of  the  court,  contempts  of  their  author- 
ity:  ...  the  disobedience  or  resistance  ...  by  any  .  .  .  wit- 
ness ...  to  any  lawful  writ,  process,  order,  rule,  decree,  or 
command  of  said  courts."  (36  Stats.  1163;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  1009;  2  U.  S.  Comp.  Stats.  1916,  §  1245.) 

§  348.     Fees  and  Mileage  of  Witnesses  Who  Testify  on  Letters 
Rogatory. 

§  4074,  Rev.  Stats.  "Every  witness  who  shall  so  appear 
and  testify  shall  be  allowed,  and  shall  receive  from  the  party 


§§  349-350,  Ch.  12    MANUAL  OP  PEDEHAL  PROCEDURE.  186 

at  whose  instance  he  shall  have  been  summoned,  the  same  fees 
and  mileage  as  are  allowed  to  witnesses  in  suits  depending  in 
the  district  courts  of  the  United  States."  (Fed.  Stats.  Ann., 
2d  ed.,  title  "Witnesses";  7  U.  S.  Comp.  Stats.  1916,  §  7622.) 

§  349.    Amount  of  Fees  and  Mileage  of  Witnesses. 

§  848,  Rev.  Stats.  ' '  For  each  day 's  attendance  in  court,  or 
before  any  officer  pursuant  to  law,  one  dollar  and  fifty  cents, 
and  five  cents  a  mile  for  going  from  his  place  of  residence  to 
the  place  of  trial  or  hearing,  and  five  cents  a  mile  for  return- 
ing. When  a  witness  is  subpoenaed  in  more  than  one  cause 
between  the  same  parties,  at  the  same  court,  only  one  travel 
fee  and  one  per  diem  compensation  shall  be  allowed  for  attend- 
ance. Both  shall  be  taxed  in  the  case  first  disposed  of,  after 
which  the  per  diem  attendance  fee  alone  shall  be  taxed  in  the 
other  cases  in  the  order  in  which  they  are  disposed  of. 

"When  a  witness  is  detained  in  prison  for  want  of  security 
for  his  appearance,  he  shall  be  entitled,  in  addition  to  his  sub- 
sistence, to  a  compensation  of  one  dollar  a  day."  (Fed.  Stats. 
Ann.,  2d  ed.,  title  "Witnesses''}  2  U.  S.  Comp.  Stats.  1916, 
§  1452.) 

§350.    Fees  and  Mileage  in  Certain  States — Double  Mileage 
Prohibited. 

§  1,  Act  May  27,  1908,  c.  200.  "Jurors  and  witnesses  in  the 
United  States  courts  in  the  States  of  Wyoming,  Montana, 
Washington,  Oregon,  California,  Nevada,  Idaho,  Colorado,  and 
Utah,  and  in  the  Territories  of  New  Mexico  and  Arizona  shall 
be  entitled  to  receive  for  actual  attendance  at  any  court  or 
courts  and  for  the  time  necessarily  occupied  in  going  to  and 
returning  from  the  same,  three  dollars  a  day,  and  fifteen  cents 
for  each  mile  necessarily  traveled  over  any  stage  line,  or  by 
private  conveyance,  and  five  cents  for  each  mile  by  any  rail- 
way or  steamship  in  going  to  and  returning  from  said  courts : 
Provided,  That  no  constructive  or  double  mileage  fees  shall  be 
allowed  by  reason  of  any  person  being  summoned  as  both  a 
witness  and  juror,  or  as  a  witness  in  two  or  more  cases  pend- 
ing in  the  same  court  and  triable  at  the  same  term  thereof." 
(35  Stats.  377;  Fed.  Stats.  Ann.,  2d  ed.,  title  "Witnesses"; 
2  U.  S.  Comp.  Stats.  1916,  §  1453,  p.  2339.) 


187  WITNESSES.  Ch.  12,  §§  351-353 

§  351.    Subpoena  for  Witnesses  in  Contested  Patent  Cases. 

§  4906,  Rev.  Stats.  "The  clerk  of  any  court  of  the  United 
States,  for  any  district  4or  territory  wherein  testimony  is  to 
be  taken  for  use  in  any  contested  case  pending  in  the  Patent 
Office,  shall,  upon  the  application  of  any  party  thereto,  or  of 
his  agent  or  attorney,  issue  a  subpoena  for  any  witness  residing 
or  being  within  such  district  or  territory,  commanding  him 
to  appear  and  testify  before  any  officer  in  such  district  or  ter- 
ritory authorized  to  take  depositions  and  affidavits,  at  any  time 
and  place  in  the  subpoena  stated.  But  no  witness  shall  be  re- 
quired to  attend  at  any  place  more  than  forty'  miles  from  the 
place  where  the  subpoena  is  served  upon  him."  (Fed.  Stats. 
Ann.,  2d  ed.,  title  "Witnesses";  8  U.  S.  Comp.  Stats.  1916, 
§  9451.) 

§  352.    Enforcing  Attendance  and  Testimony  of  Witnesses  in 
Patent  Cases. 

§4908,  Rev.  Stats.  "Whenever  any  witness,  after  being 
duly  served  with  such  subpoena,  neglects  or  refuses  to  ap- 
pear, or  after  appearing  refuses  to  testify,  the  judge  of  the 
court  whose  clerk  issued  the  subpoena  may,  on  proof  of  such 
neglect  or  refusal,  enforce  obedience  to  the  process,  or  punish 
the  disobedience,  as  in  other  like  cases.  But  no  witness  shall 
be  deemed  guilty  of  contempt  for  disobeying  such  subpoena, 
unless  his  fees  and  traveling  expenses  in  going  to,  returning 
from,  and  one  day's  attendance  at  the  place  of  the  examina- 
tion, are  paid  or  tendered  him  at  the  time  of  the  service  of 
the  subpoena;  nor  for  refusing  to  disclose  any  secret  inven- 
tion or  discovery  made  or  owned  by  himself."  (Fed.  Stats. 
Ann.,  2d  ed.,  title  "Witnesses"}  8  U.  S.  Comp.  Stats.  1916, 
§  9453.) 

§  353.    Fees  of  Witnesses  in  Patent  Cases. 

§  4907,  Rev.  Stats.  "Every  witness  duly  subpoenaed  and  in 
attendance  shall  be  allowed  the  same  fees  as  are  allowed  to 
witnesses  attending  the  courts  of  the  United  States."  (Fed. 
Stats.  Ann.,  2d  ed.,  title  "Witnesses";  8  U.  S.  Comp.  Stats. 
1916,  §9452.) 


§§  354-357,  Ch.  12     MANUAL  OP  FEDERAL  PROCEDURE.  188 

§  354.    Subpoena  to  Witnesses  in  Claim  Cases  Against  United 
States  Pending  in  Departments. 

§  184,  Rev.  Stats.  "Any  hcacj  of  a  department  or  bureau 
in  which  a  claim  against  the  United  States  is  properly  pending 
may  apply  to  any  judge  or  clerk  of  any  court  of  the  United 
States,  in  any  state,  district,  or  territory,  to  issue  a  subpoena 
for  a  witness  being  within  the  jurisdiction  of  such  court,  to 
appear  at  a  time  and  place  in  the  subpoena  stated,  before  any 
officer  authorized  to  take  depositions  to  be  used  in  the  courts 
of  the  United  States,  there  to  give  full  and  true  answers  to 
such  written  interrogatories  and  cross-interrogatories  as  may 
be  submitted  with  the  application,  or  to  be  orally  examined 
and  cross-examined  upon  the  subject  of  such  claim."  (2  Fed. 
Stats.  Ann.,  2d  ed.,  p.  175;  1  U.  S.  Comp.  Stats.  1916,  §  266.) 

§  355.     Enforcing  Attendance  and  Testimony  of  Witnesses  in 
Claim  Cases  Against  United  States  Pending  in  Departments. 

§  186,  Rev.  Stats.  "If  any  witness,  after  being  duly  served 
with  such  subpoena,  neglects  or  refuses  to  appear,  or,  appear- 
ing, refuses  to  testify,  the  judge  of  the  district  in  which  the 
subpoena  issued  may  proceed,  upon  proper  process,  to  enforce 
obedience  to  the  subpoena,  or  to  punish  the  disobedience  in 
like  manner  as  any  court  of  the  United  States  may  do  in  case 
of  process  of  subpoena  ad  testificandum  issued  by  such  court. ' ' 
(2  Fed.  Stats.  Ann.,  2d  ed.,  p.  176 ;  1  U.  S.  Comp.  Stats.  1916, 
§  268.) 

§  356.    Fees  of  Witnesses  in  Claim  Cases  Against  United  States 
Pending  in  Departments. 

§  185,  Rev.  Stats.  ' '  Witnesses  subpoenaed  pursuant  to  the 
preceding  section  shall  be  allowed  the  same  compensation  as 
is  allowed  witnesses  in  the  courts  of  the  United  States." 
(2  Fed.  Stats.  Ann.,  2d  ed.,  p.  175;  1  U.  S.  Comp.  Stats.  1916, 
§  267.) 

§  357.    Compulsory  Attendance  of  Witnesses  Under  Interstate 
Commerce  Act. 

Part  §  3,  Act  Feb.  19,  1903,  c.  708.  "And  in  proceedings 
under  this  act  and  the  acts  to  regulate  commerce,  the  said 


189  WITNESSES.  Ch.  12,  §§  358-359 

courts  shall  have  the  power  to  compel  the  attendance  of  wit- 
nesses, both  upon  the  part  of  the  carrier  and  the  shipper,  who 
shall  be  required  to  answer  on  all  subjects  relating  directly  or 
indirectly  to  the  matter  in  controversy,  and  to  compel  the  pro- 
duction of  all  books  and  papers,  both  of  the  carrier  and  the 
shipper,  which  relate  directly  or  indirectly  to  such  transaction  ; 
the  claim  that  such  testimony  or  evidence  may  tend  to  crimi- 
nate the  person  giving  such  evidence  shall  not  excuse  such 
person  from  testifying  or  such  corporation  producing  its  books 
and  papers,  but  no  person  shall  be  prosecuted  or  subjected  to 
any  penalty  or  forfeiture  for  or  on  account  of  any  transaction, 
matter,  or  thing  concerning  which  he  may  testify  or  produce 
evidence,  documentary  or  otherwise,  in  such  proceeding." 
(32  Stats.  848 ;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  566;  8  U.  S.  Comp. 
Stats.  1916,  §  8599.) 

§358.     Compulsory  Attendance  of  Witnesses  Under  Income 
Tax  Law. 

§  20,  Act  Sept.  8,  1916,  c.  463.  "That  jurisdiction  is  hereby 
conferred  upon  the  district  courts  of  the  United  States  for  the 
district  within  which  any  person  summoned  under  this  title 
to  appear  to  testify  or  to  produce  books  shall  reside,  to  compel 
such  attendance,  production  of  books,  and  testimony  by  appro- 
priate process."  (Pamphlet  Supp.,  Fed.  Stats.  Ann.,  2d  ed., 
title  Internal  Revenue,  No.  8,  p.  97;  6  U.  S.  Comp.  Stats. 
1916,  §  63,365,  p.  7359.) 

§  359.    Administration  of  Oaths. 

§  266,  Jud.  Code  (see  §  347,  supra}.  "The  said  courts  shall 
have  power  to  impose  and  administer  all  necessary  oaths.  .  .  .  ' 

§  183,  Rev.  Stats.,  as  Amended  by  Act  Feb.  13,  1911,  c.  43. 
"Any  officer  or  clerk  of  any  of  the  departments  lawfully  de- 
tailed to  investigate  frauds  on,  or  attempts  to  defraud,  the 
government,  or  any  irregularity  or  misconduct  of  any  officer 
or  agent  of  the  United  States,  and  any  officer  of  the  Army, 
Navy,  Marine  Corps,  or  Revenue-cutter  Service  detailed  to 
conduct  an  investigation,  and  the  recorder,  and  if  there  be 
none  the  presiding  officer,  of  any  military,  naval,  or  revenue- 
cutter  service  board  appointed  for  such  purpose,  shall  have 
authority  to  administer  an  oath  to  any  witness  attending  to 


§  359,  Cll.  12  MANUAL  OF  FEDERAL  PROCEDURE.  190 

testify  or  depose  in  the  course  of  such  investigation." 
(36  Stats.  898;  Fed.  Stats.  Ann.,  2d  ed.,  title  "Public  Offi- 
cers"; 1  U.  S.  Comp.  Stats.  1916,  §  265,  p.  114.) 

Part  §  12,  Act  Sept.  24, 1917,  c. .  (i)  "The  comptroller 

and  the  .auditor,  and  such  persons  as  may  be  authorized  in  writ- 
ing by  either  of  them,  may  administer  oaths  to  American  citi- 
zens in  respect  to  any  matter  within  the  jurisdiction  of  either 
of  said  officers  and  certify  the  official  character,  when  known,  of 
any  foreign  officer  whose  jurat  or  certificate  may  be  necessary 
on  any  paper  to  be  filed  with  them."  (Adv.  Sheets,  244  Fed. 
No.  3,  p.  323;  U.  S.  Comp.  Stats.  1916,  §  420a.) 

Act  March  4, 1917,  c.  179.  "That  hereafter,  in  the  perform- 
ance' of  the  duties  required  of  the  Department  of  Agriculture 
by  the  provisions  of  this  Act  relating  to  the  Bureau  of  Markets, 
the  Secretary  of  Agriculture  shall  have  power  to  administer 
oaths,  examine  witnesses,  and  call-  for  the  production  of  books 
and  papers."  (U.  S.  Comp.  Stats.  1916,  §795a;  Adv.  Sheets, 
•  239  Fed.  No.  3,  p.  146.) 

Act  Jan.  25,  1895,  c.  45,  as  Amended,  Act  March  3,  1901, 
c.  834,  and  Act  March  4,  1917,  c.  180.  "That  judges  advo- 
cate of  naval  general  courts-martial  and  courts  of  inquiry,  and 
all  commanders  in  chief  of  naval  squadrons,  commandants  of 
navy  yards  and  stations,  officers  commanding  vessels  of  the 
Navy,  and  recruiting  officers  of  the  Navy,  and  the  adjutant 
and  inspector,  assistants  adjutant  and  inspector,  commanding 
officers,  recruiting  officers  of  the  Marine  Corps,  and  such  other 
officers  of  the  Regular  Navy  and  Marine  Corps,  of  the  Naval 
Reserve  Force,  of  the  Marine  Corps  Reserve,  and  of  the 
National  Naval  Volunteers  as  may  be  hereafter  designated  by 
the  Secretary  of  the  Navy,  be,  and  they  are  hereby,  author- 
ized to  administer  oaths  for  the  purposes  of  the  administra- 
tion of  naval  justice  and  for  other  purposes  of  naval  admin- 
istration." (U.  S.  Comp.  Stats.  1916,  §  3037;  Adv.  Sheets,  239 
Fed.  No.  3,  p.  154.) 

Part  §  17,  Act  Feb.  4,  1887,  as  Amended  ~by  §  2,  Act  Aug.  9, 
1917,  c.  -  — .  "That  .  .  .  Any  member  of  the  (Interstate 
Commerce)  commission  may  administer  oaths  and  affirmations 
and  sign  subpoenas." 

Act  Oct.  6,  1917,  c. .  "  [Affidavits— before  whom  taken 

—pei-sons  in  military  or  naval  service.]  That  during  the  con- 
tinuance of  the  present  Avar  with  Germany,  and  until  his  dis- 


191  WITNESSES.  Ch.  12,  §  360 

charge  from  service,  any  man  serving  in  the  armed  forces  of 
the  United  States,  who,  prior  to  the  beginning  of  his  services 
.  was  a  settler,  an  applicant,  or  entryman  under  the  land  laws 
of  the  United  States,  or  who  has,  prior  to  enlistment,  filed  a 
contest,  with  the  view  of  exercising  preference  right  of  entry 
therefor,  may  make  any  affidavit  required  by  law  or  regulation 
of  the  department,  affecting  such  application,  entry,  or  con- 
test, or  necessary  to  the  making  of  entry  in  the  case  of  the 
successful  termination  of  such  contest  awarding  him  prefer- 
ence right  of  entry,  before  his  commanding  officer  as  provided 
in  section  twenty-two  hundred  and  ninety-three  of  the  Revised 
Statutes  of  the  United  States,  which  affidavits  shall  be  as  bind- 
ing in  law  and  with  like  penalties  as  if  taken  before  the 
Register  of  the  United  States  Land  Office."  (Pamphlet  Supp., 
Fed.  Stats.  Ann.  No.  12,  p.  110,  title  " Public  Lands.") 

§360.    Discovery  Under  Act  for  National  Security  and  De- 
fense Stimulating  Agriculture. 

Act  Aug.  10,  1917,  c.  .     §  2.     [Authority  of  Secretary 

of  Agriculture — investigation  relative  to  production,  etc.,  of 
food.]  "That  the  Secretary  of  Agriculture,  with  the  approval 
of  the  President,  is  authorized  to  investigate  and  ascertain  the 
demand  for,  the  supply,  consumption,  costs,  and  prices  of,  and 
the  basic  facts  relating  to  the  ownership,  production,  transpor- 
tation, manufacture,  storage,  and  distribution  of,  foods,  food 
materials,  feeds,  seeds,  fertilizers,  agricultural  implements  and 
machinery,  and  any  article  required  in  connection  with  the 
production,  distribution,  or  utilization  of  food.  It  shall  be  the 
duty  of  any  person,  when  requested  by  the  Secretary  of  Agri- 
culture, or  any  agent  acting  under  his  instructions,  to  answer 
correctly,  to  the  best  of  his  knowledge,  under  oath  or  other- 
wise, all  questions  touching  his  knowledge  of  any  matter  au- 
thorized to  be  investigated  under  this  section,  or  to  produce 
all  books,  letters,  papers,  or  documents  in  his  possession,  or 
under  his  control,  relating  to  such  matter.  Any  person  who 
shall,  within  a  reasonable  time  to  be  prescribed  by  the  Secre- 
tary of  Agriculture,  not  exceeding  thirty  days  from  the  date 
of  the  receipt  of  the  request,  willfully  fail  or  refuse  to  answer 
such  questions  or  to  produce  such  books,  letters,  papers,  or 
documents,  or  who  shall  willfully  give  any  answer  that  is  false 
or  misleading,  shall  be  guilty  of  a  misdemeanor,  and  upon 


§  361,  Ch.  12  MANUAL  OF  FEDERAL  PROCEDURE.  li/2 

conviction  thereof,  shall  be  punished  by  a  fine  not  exceeding 
$1,000  or  by  imprisonment  not  exceeding  one  year,  or  both." 
(Pamphlet  Supp.,  Fed.  Stats.  Ann.  No.  12,  p.  2,  title  "Agri- 
culture.") 

§  361.     Compelling-  Attendance  of  Witnesses,  etc.,  Under  Act 
Establishing  Bureau  of  War  Risk  Insurance. 

Act  Oct.  6,  1917,  c. .     "§15.     That  for  the  purposes  of  k 

this  Act,  the  director,  commissioners,  and  deputy  commission- 
ers shall  have  power  to  issue  subpoenas  for  and  compel  the 
attendance  of  witnesses  within  a  radius  of  one  hundred  miles, 
to  require  the  production  of  books,  papers,  documents,  and 
other  evidence,  to  administer  oaths  and  to  examine  witnesses 
upon  any  matter  within  the  jurisdiction  of  the  bureau.  The 
director  may  obtain  such  information  and  such  reports  from 
officials  and  employees  of  the  departments  of  the  Government 
of  the  United  States  and  of  the  States  as  may  be  agreed  upon 
by  the  heads  of  the  respective  departments.  In  case  of  dis- 
obedience to  a  subpoena,  the  bureau  may  invoke  the  aid  of 
any  district  court  of  the  United  States  in  requiring  the  attend- 
ance and  testimony  of  witnesses  and  the  production  of  docu- 
mentary evidence,  and  such  court,  within  the  jurisdiction  of 
which  the  inquiry  is  carried  on,  may,  in  case  of  contumacy 
or  refusal  to  obey  a  subpoena  issued  to  any  officer,  agent,  or 
employee  of  any  corporation  or  other  person,  issue  an  order 
requiring  such  corporation  or  other  person  to  appear  before 
the  bureau,  or  to  give  evidence  touching  the  matter  in  ques- 
tion ;  and  any  failure  to  obey  such  order  of  the  court  may  be 
punished  by  such  court  as  a  contempt  thereof.  Any  person 
so  required  to  attend  as  a  witness  shall  be  allowed  and  paid 
the  same  fees  and  mileage  as  are  paid  witnesses  in  the  district 
courts  of  the  United  States."  (Pamphlet  Supp.,  Fed.  Stats. 
Ann.  No.  12,  p.  152,  title  "War  Dept,  etc.) 


J  93  DEPOSITIONS.  Ch.  13,  §  370 


CHAPTER  13. 

DEPOSITIONS. 

SEO. 

370.  In  General. 

371.  Time  for  Taking  Depositions  at  Law. 

372.  Time  for  Taking  Depositions  in  Equity. 

373.  Same — Depositions  in  Equity  After  Issue. 

374.  Grounds   for   Depositions   in   Equity:    When    Allowed   by   Statute,   or 

for  Good  and  Exceptional  Cause. 

375.  Depositions  De  Bene  Esse — Conditions  for  Taking  and  Using. 

376.  Officers  Before  Whom  Depositions  De  Bene  Esse  may  be  Taken. 

377.  Notice  of  Taking  Depositions  De  Bene  Esse. 

378.  Compelling   Attendance   of   Witness — Depositions   De  Bene   Esse. 

379.  Mode  of  Taking  Depositions  De  Bene  Esse. 

380.  Equity  Rule  as  to  Form  of  Deposition. 

381.  Equity  Rule  as  to  Objections  to  Evidence. 

382.  Equity  Rule  as  to  Signing  Deposition. 

383.  Delivery  into  Court  of  Depositions  De  Bene  Esse. 

384.  Depositions  Under  a  Commission. 

385.  Witnesses  Exempt  from  Attendance — Depositions  Under  a  Commission. 

386.  Compelling    Attendance    and    Testimony    of    Witnesses    for    Depositions 

Under  Commission. 

387.  Compelling  Production  of  Papers,  Written  Instruments,  Books  or  Docu- 
ments in  Taking  Depositions  Under  a  Commission. 

388.  Depositions  to  Perpetuate  Testimony  Under  State  Daws — Admissible  in 

Court's  Discretion. 

389.  Depositions  may  be  Taken  in  Mode  Prescribed  by  State  Law. 

39P.     Depositions  in  Equity  Under  Court  Order  Before  Commissioner,  Master 
or  Examiner. 

391.  Same — Notice. 

392.  Deposition  in  Equity  Published  on  Filing. 

393.  Letters  Rogatory  or  Commissions  to  Take  Depositions  of  Witnesses  in 

Foreign  Countries. 

394.  Taking  Testimony  to  be  Used  in  Foreign  Countries. 

395.  Same — Witness   Need   not   Criminate  Himself. 

396.  Publicity  in  Taking  Depositions  in  Anti-trust  Cases. 

§  370.  In  General.  Depositions  in  law  actions  can  only  be 
taken  on  grounds  specified  in  the  federal  statutes,  and  in  equity 
"when  allowed  by  statute  or  for  good  and  exceptional  cause  for 

Manual — 18 


§§  371-372,  Ch.  13     MANUAL  OF  FEDERAL  PROCEDURE.  19-1 

departing  from  the  general  rule."  (Equity  Rule  47,  §§  373,  374, 
post.) 

The  federal  statutes  authorize  two  classes  of  depositions:  (1)  On 
notice,  de  bene  esse,  that  is  to  say,  provisionally  anticipating  that 
it  will  be  impossible  to  produce  the  witness  in  open  court  for  the 
reasons  specified  in  §  863,  Kev.  Stats.  (§  375  et  seq.,  post)  ;  (2)  on 
commission  under  §  866,  Rev.  Stats.  (§  384,  post). 

The  manner  of  taking  these  depositions  is  specified  for  de  bene 
esse  in  §§  863-865,  Rev.  Stats.  (§  376  et  seq.,  post),  and  on  commis- 
sion in  §§  866,  868;  869,  870,  Rev.  Stats.  (§  384  et  seq.,  post)  ;  the 
latter  kind  of  depositions  not  being  affected  by  §§  863-865,  Rev. 
Stats.  Depositions  may  also  be  taken  under  act  March  9,  1892, 
chapter  14  (§  389,  post)  in  the  mode,  though  not  on  the  grounds, 
prescribed  by  the  laws  of  the  state,  and  under  §  867,  Rev.  Stats. 
(§  388,  post),  a  federal  court  in  its  discretion  may  admit  in  evidence 
in  any  cause  before  it  any  deposition  taken  in  perpetuam  rei  memo- 
riam,  under  state  law. 

Depositions  in  equity  may  also  be  taken  under  order  of  court 
(§  374  et  seq.,  post). 

Letters  rogatory  or  on  commission  are  used  to  obtain  testimony 
of  witnesses  in  foreign  countries  (§  393,  post). 

Depositions  may  be  taken  to  be  used  in  foreign  countries  under 
§§  4071,  4072,  Rev.  Stats.  (§  394  et  seq.,  post). 

§  371.  Time  for  Taking  Depositions  at  Law.  At  law,  the  stat- 
ute does  not  designate  the  time  for  taking  depositions.  In  provid- 
ing for  special  notice  whenever  by  reason  of  want  of  an  attorney 
of  record  the  giving  of  notice  as  therein  required  shall  be  imprac- 
'ticable,  possibly  the  statute  implies  that  such  depositions  may  be 
taken  before  issue  joined. 

§  372.    Time  for  Taking  Depositions  in  Equity. 

Equity  Rule  54.  "After  a  cause  is  at  issue,  depositions 
may  be  taken  as  provided  by  §§  863,  865,  866,  and  867,  Revised 
Statutes.  But  .if  in  any  case  no  notice  has  been  given  the 
opposite  party  of  the  time  and  place  of  taking  the  deposition. 


195  DEPOSITIONS.  Ch.  13,  §§  373-374 

he  shall,  upon  application  and  notice,  be  entitled  to  have  the 
witness  examined  orally  before  the  court  or  to  a  cross-exam- 
ination before  an  examiner  or  like  officer,  or  a  new  deposition 
taken  with  notice,  as  the  court  or  judge  under  all  the  circum- 
stances shall  order."  (3  U.  S.  Comp.  Stats.  1916,  §  1536, 
p.  2519;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  492,  497, 
514.  539.) 

It  will  be  noted  from  the  above,  that  depositions  taken  in  equity 
suits  de  bene  esse  or  on  commission  under  the  federal  statutes  are 
only  so  taken  after  the  cause  is  at  issue.  If  necessity  exists  for 
taking  depositions  before  cause  is  at  issue,  such  depositions  should 
be  taken  under  Rule  47  (§  374,  below)  on  affidavit  showing  good 
and  exceptional  cause  for  departing  from  the  general  rule  and  an 
order  of  court  specifying  the  notice  and  terms  for  taking. 

Time  for  taking  depositions  in  equity  after  issue  is  set  out  in  the 
following  section: 

§  373.    Same — Depositions  in  Equity  After  Issue. 

Last  Part  Equity  Rule  47.  "...  All  depositions  taken 
under  a  statute,  or  under  any  such  order  of  the  court,  shall* 
be  taken  and  filed  as  follows,  unless  otherwise  ordered  by  the 
court  or  judge  for  good  cause  shown:  Those  of  the  plaintiff 
within  sixty  days  from  the  time  the  cause  is  at  issue ;  those  of 
the  defendant  within  thirty  days  from  the  expiration  of  the 
time  for  the  filing  of  plaintiff's  depositions;  and  rebutting 
depositions  by  either  party  within  twenty  days  after  the  time 
for  taking  original  depositions  expires."  (3  U.  S.  Comp. 
Stats.  1916.  §  1536,  p.  2516;  Foster's  Federal  Practice,  5th  ed., 
p.  1131,  §352.) 

§  374.  Grounds  for  Depositions  in  Equity :  When  Allowed  by 
Statute,  or  for  Good  and  Exceptional  Cause. 

First  Part  Equity  Pule  47.  "The  court,  upon  application 
of  either  party,  when  allowed  by  statute,  or  for  good  and  ex- 
ceptional cause  for  departing  from  the  general  rule,  to  be 
shown  by  affidavit,  may  permit  the  deposition  of  named  wit- 
nesses, to  be  used  before  the  court  or  upon  a  reference  to  a 
master,  to  be  taken  before  an  examiner  or  other  named  officer, 


§§  375-376,  Ch.  13     MANUAL  OF  FEDERAL,  PROCEDURE.  196 

upon   the   notice,  and   terms   specified   in   the   order.  .  .  .  ' 
(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2516;  Foster's  Federal 
Practice,  5th  ed.,  p.  1131,  §  352.) 

§  375.  Depositions  De  Bene  Esse — Conditions  for  Taking  and 
Using. 

Part  §  863,  Rev.  Stats.  "The  testimony  of  any  witness  may 
be  taken  in  any  civil  cause  depending  in  a  district  or  circuit 
court  by  deposition  de  bene  esse,  when  the  witness  lives  at  a 
greater  distance  from  the  place  of  trial  than  one  hundred  miles, 
or  is  bound  on  a  voyage  to  sea,  or  is  about  to  go  out  of  the 
United  States,  or  out  of  the  district  in  which  the  case  is  to 
be  tried,  and  to  a  greater  distance  than  one  hundred  miles 
from  the  place  of  trial,  before  the  time  of  trial,  or  when  he 
is  ancient  and  infirm.  .  .  .  '  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  172;  3  U.  S.  Comp.  Stats.  1916,  §  1472.) 

Last  Part  §  865,  Rev.  Stats.  "...  But  unless  it  appears 
to  the  satisfaction  of  the  court  that  the  witness  is  then  dead, 
or  gone  out  of  the  United  States,  or  to  a  greater  distance  than 
one  hundred  miles  from  the  place  where  the  court  is  sitting,  or 
that,  by  reason  of  age,  sickness,  bodily  infirmity,  or  imprison- 
ment, he  is  unable  to  travel  and  appear  at  court,  such  deposi- 
tion shall  not  be  used  in  the  cause."  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  185;  3  U.  S.  Comp.  Stats.  1916,  §  1474.) 

§  376.  Officers  Before  Whom  Depositions  De  Bene  Esse  may 
be  Taken. 

Part  §  863,  Rev.  Stats.  "...  The  deposition  may  be  taken 
before  any  judge  of  any  court  of  the  United  States,  or  any 
commissioner  of  a  circuit  court,  or  any  clerk  of  a  district  or 
circuit  court,  or  any  chancellor,  justice,  or  judge  of  a  supreme 
court,  mayor  or  chief  magistrate  of  a  city,  judge  of  a  county 
court  or  court  of  common  pleas  of  any  of  the  United  States,  or 
any  notary  public,  not  being  of  counsel  or  attorney  to  either 
of  the  parties,  nor  interested  in  the  event  of  the  cause.  .  .  .  ' 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  172;  3  U.  S.  Comp.  Stats.  1916, 
§  1472.) 

Notaries  may  Take  Depositions. 

Act  Aug.  15, 1876,  c.  304.  "That  notaries  public  of  the  sev- 
eral states,  territories,  and  the  District  of  Columbia  be  and  they 


197  DEPOSITIONS.  Ch.  13,  §  377 

are  hereby,  authorized  to  take  depositions,  and  do  all  other 
acts  in  relation  to  taking  testimony  to  be  used  in  the  courts  of 
the  United  States,  take  acknowledgments  and  affidavits,  in  the 
same  manner  and  with  the  same  effect  as  commissioner  of  the 
United  States  circuit  court  may  now  lawfully  take  or  do." 
(19  Stats.  206;  6  Fed.  Stats.  Ann.,  2d  ed.,  p.  1245;  3  U.  S. 
Comp.  Stats.  1916,  §  1475.) 

§  377.    Notice  of  Taking  Depositions  De  Bene  Esse. 

Part  §  863,  Rev.  Stats.  "  .  .  .  Reasonable  notice  must  first 
be  given  in  writing  by  the  party  or  his  attorney  proposing  to 
take  such  deposition,  to  the  opposite  party  or  his  attorney  of 
record,  as  either  may  be  nearest,  which  notice  shall  state  the 
name  of  the  witness  and  the  time  and  place  of  the  taking  of  his 
deposition;  and  in  all  cases  in  rem,  the  person  having  the 
agency  or  possession  of  the  property  at  the  time  of  seizure 
shall  be  deemed  the  adverse  party,  until  a  claim  shall  have  been 
put  in;  and  whenever,  by  reason  of  the  absence  from  the  dis- 
trict and  want  of  an  attorney  of  record  or  other  reason,  the 
giving  of  the  notice  herein  required  shall  be  impracticable,  it 
shall  be  lawful  to  take  such  depositions  as  there  shall  be  urgent 
necessity  for  taking,  upon  such  notice  as  any  judge  author- 
ized to  hold  courts  in  such  circuit  or  district  shall  think  rea- 
sonable and  direct."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  172; 
3  U.  S.  Comp.  Stats.  1916,  §  1472.) 

FORM  OP  NOTICE. 

In  the  District  Court  of  the  United  States  in  and  for  the  * District  of , 

Division. 

John  Doe, 

Plaintiff, 

NOTICE  OF  TAKING  DEPOSITIONS. 

Richard  Roe, 

Defendant. 
. 
To  Henry  Smith,  Defendant  [or  plaintiff]  or  John  Jones,  Hie  Attorney. 

Please  take  notice  that  on   (Monday)  the day  of  ,  1918,  at  

o'clock  -  -  M.  the  deposition  de  bene  esse  of  Charles  Black,  of  the  city  of 
,  county  of  ,  and  state  of ,  will  be  taken  on  behalf  of  the  plain- 
tiff [or  defendant]  herein,  before  Frank  Monroe,  who  is  a  commissioner  of 

the  district  court  of  the  United  States  for  district  of  [or  a  notary 

public  in  and  for  the  county  of ,  state  of  ,  or  other  officer  specified 


§§  378-379,  Ch.  13     MANUAL  OF  FEDERAL  PROCEDURE.  198 

in  section  863,  Rev.  Stats.]   who  is  not  of  counsel  or  attorney  to  either  of  the 

parties,  nor  interested  in  the  event  of  the  cause,  at  his  office,  No.  ,  in  the 

city  of ,  county  of ,  state  of . 

The   said   witness   resides   at  ,   more   than  one  hundred   miles   from   the 

place  where  the  trial  of  this  action  will  occur  [or  is  bound  on  a  voyage  to 
sea,  or  about  to  go  out  of  the  United  States,  or  out  of  the  district  where  the 
case  is  to  be  tried,  and  to  a  greater  distance,  than  one  hundred  miles  from 
the  place  of  trial,  or  is  ancient  or  infirm]. 

The  examination  of  said  witness  will  proceed  from  day  to  day  until  com- 
pleted and  will  be  taken  under  sections  863,  864,  865,  Revised  Statutes  of  the 
United  States. 

Dated,  .. 

,  Attorney  for  Plaintiff   [or  Defendant]. 

§378.  Compelling  Attendance  of  Witness  —  Depositions  De 
Bene  Esse. 

Part  §  863,  Rev.  Stats.  "Any  person  may  be  compelled  to 
appear  and  depose  as  provided  by  this  section,  in  the  same 
manner  as  witnesses  may  be  compelled  to  appear  and  testify 
in  court."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  172;  3  U.  S.  Comp. 
Stats.  1916,  §  1472.) 

§  379.    Mode  of  Taking  Depositions  De  Bene  Esse. 

§864,  Rev.  Stats.  "Every  person  deposing  as  provided  in 
the  preceding  section  shall  be  cautioned  and  sworn  to  testify 
the  whole  truth,  and  carefully  examined.  His  testimony  shall 
be  reduced  to  writing  or  typewriting  by  the  officer  taking  the 
deposition,  or  by  some  person  under  his  personal  supervision, 
or  by  the  deponent  himself  in  the  officer's  presence,  and  by  no 
other  person,  and  shall,  after  it  has  been  reduced  to  writing 
or  typewriting,  be  subscribed  by  the  deponent.  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  184;  3  U.  S.  Comp.  Stats.  1916,  §  1473.) 


199  DEPOSITIONS.  Ch.  13,  §  379 

FORM  OF  DEPOSITION. 

In  the  District  Court  of  the  United  States  in  and  for  the District  of , 

— —  Division. 


John  Doe, 

Plaintiff, 


DEPOSITION  OF 


V. 

Richard  Roe, 

Defendant. 

Taken  on  Behalf  of  Defendant  [or  Plaintiff]. 

State  of , 

County  of  

District  of 

Division, 

—  of  the  city  of  ,  county  of  and  state  of  ,  residing  more 

than  one  hundred  miles  from  the  place  where  the  trial  of  this  action  will  occur 
[as  being  bound  on  a  voyage  to  sea,  or  about  to  go  out  of  the  United  States, 
or  out  of  the  district  where  the  case  is  to  be  tried,  and  to  a  greater  distance 
than  one  hundred  miles  from  the  place  of  trial,  or  being  ancient  or  infirm] 
a  witness  called  on  behalf  of  the  plaintiff  [or  defendant]  herein,  being  duly 
cautioned  and  sworn  to  testify  the  whole  truth,  -and  being  carefully  examined, 
deposes  and  says  as  follows: 

,  Esquire,  appeared  as  attorney  for  plaintiff  and  ,  Esquire,  ap- 
peared as  attorney  for  defendant.  [The  testimony  on  request  of  either  party 
should  be  by  question  and  answer  otherwise  in  narrative  form.] 

Q.  1.  State  your  name  and  age. 

A. 

Q.  2.  State  your  residence. 

FORM  OF  OFFICER'S  CONCLUDING  CERTIFICATE. 

In  the  District  Court  of  the  United  States  in  and  for  the District  of , 

— • —  Division. 

John  Doe, 

Plaintiff, 
v. 

Richard  Roe, 

Defendant. 

State  of , 

County  of  

District  of 

Division, 

I  hereby  certify  that  on  the  day  of ,  — — ,  before  me, — , 

a  commissioner  of  the  United  States  for  the  —    -  district  of  -     -  [or  other 


§  380,  Ch.  13  MANUAL  OF  FEDERAL  PROCEDURE.  200 

official  designation],  at  my  office,  No.  ,  in  the  city  of  ,  county  of 

,  state  of ,  personally  appeared,  pursuant  to  the  notice  hereto  annexed, 

between  the  hours  of o'clock M.  and  —  —  o'clock M., ,  the 

witness  named  in  said  notice,  and  ,  Esquire,  appearing  for  plaintiff,  and 

— ! — ,  Esquire,  appearing  for  defendant',  and  the  said  being  by  me  first 

duly  cautioned  and  sworn  ,to  testify  the  whole  truth,  and  being  carefully 
examined,  deposed  and  said  as  in  the  foregoing  annexed  deposition  set  out. 

I  further  certify  that  said  deposition  was  begun  on  the  day  of  , 

,  and  continued  from  day  to  day  until  the  .day  of  ,  ,  when 

same  was  completed. 

I  further  certify  that  the  several  exhibits  attached  to  said  deposition,  were 
offered  in  evidence  and  marked  for  identification  as  is  set  out  in  said  deposi- 
tion. 

I  further  certify  that  the  said  deposition  was  then  and  there  reduced  to 
writing  [or  typewriting]  by  me  [or  under  my  personal  supervision^  or  by  the 
witness  in  my  presence],  and  was,  after  it  had  been  reduced  to  writing  [or 
typewriting],  subscribed  by  the  witness,  and  the  same  has  been  retained  by 
me  for  the  purpose  of  sealing  up  and  directing  the  same  to  the  clerk  of  the 
court  as  required  by  law. 

I  further  certify  that  the  reason  why  the  said  deposition  was  taken  was 

that  the  said  witness  resides  at  ,  more  than  one  hundred  miles  from  

the  place  where  this  cause  is  to  be  tried  [or  other  reason,  specified  section  863, 
Revised  Statutes]. 

I  further  certify  that  I  am  not  of  counsel  or  attorney  to  either  of  the  par- 
ties, nor  am  I  interested  in  the  event  of  the  cause. 

I  further  certify  that  the  fee  for  taking  said  deposition,  $ ,  has  been 

paid  to  me  by  the  plaintiff  [or  defendant],  and  the  same  is  just  and  reason- 
able. 

Witness  my  hand  and  official  seal  at  — — ,  this  day  of  ,  . 

[Seil]  , 

[Title.] 

§  380.    Equity  Rule  as  to  Form  of  Deposition. 

Equity  Rule  49.  "All  evidence  offered  before  an  examiner 
or  like  officer,  together  with  any  objections,  shall  be  saved  and 
returned  into  the  court.  Depositions,  whether  upon  oral  ex- 
amination before  an  examiner  or  like  officer  or  otherwise,  shall 
be  taken  upon  questions  and  answers  reduced  to  writing,  or 
in  the  form  of  narrative,  and  the  witnesses  shall  be  subject  to 
cross  and  re-examination."  (3  U.  S.  Comp.  Stats.  1916,  §  1536, 
p.  2518;  Foster's  Federal  Practice,  5th  ed.,  p.  1132,  §  352; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  501,  531,  533.) 


201  DEPOSITIONS.  Ch.  13,  §§  381-384 

§  381.    Equity  Rule  as  to  Objections  to  Evidence. 

Part  Equity  Rule  51.  "Objections  to  the  evidence,  before 
an  examiner  or  like  officer,  shall  be  in  short  form,  stating  the 
grounds  of  objection  relied  upon,  but  no  transcript  filed  by 
such  officer  shall  include  argument  or  debate.  .  .  .  Objection 
to  any  question  or  questions  shall  be  rioted  by  the  officer  upon 
the  depositions,  but  he  shall  not  have  power  to  decide  on  the 
competency  or  materiality  or  relevancy  of  the  questions.  The 
court  shall  have  power,  and  it  shall  be  its  duty,  to  deal  with 
the  costs  of  incompetent  and  immaterial  or  irrelevant  deposi- 
tions, or  parts  of  them,  as  may  be  just."  (3  U.  S.  Comp.  Stats. 
1916,  §  1536,  p.  2518;  Foster's  Federal  Practice,  5th  ed., 
p.  1132,  §  352;  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  526.) 

§  382.    Equity  Rule  as  to  Signing  Deposition. 

Part  Equity  Rule  51.  "...  The  testimony  of  each  wit- 
ness, after  being  reduced  to  writing,  shall  be  read  over  to  or  by 
him,  and  shall  be  signed  by  him  in  the  presence  of  the  officer : 
Provided,  That  if  the  witness  shall  refuse  to  sign  his  deposition 
so  taken,  the  officer  shall  sign  the  same,  stating  upon  the  rec- 
ord the  reasons,  if  any,  assigned  by  the  witness  for  such  re- 
fusal. ..."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2518; 
Foster's  Federal  Practice,  5th  ed.,  p.  1132,  §  352;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  pp.  502,  531,  533.) 

§  383.    Delivery  into  Court  of  Depositions  De  Bene  Esse. 

Part  §  865,  Rev.  Stats.  "Every  deposition  taken  under  the 
two  preceding  sections  (863-4,  R.  S.)  shall  be  retained  by 
the  magistrate  taking  it,  until  he  delivers  it  with  his  own  hand 
into  the  court  for  which  it  is  taken ;  or  it  shall,  together  with 
a  certificate  of  the  reasons  as  aforesaid  of  taking  it  and  of 
the  notice,  if  any,  given  to  the  adverse  party,  be  by  him  sealed 
up  and  directed  to  such  court,  and  remain  under  his  seal  until 
opened  in  court.  .  .  .  '  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  185; 
3  U.  S.  Comp.  Stats.  1916,  §  1474.) 

§  384.    Depositions  Under  a  Commission. 

§  866,  Rev.  Stats.  "(Depositions  under  a  dedimus  potes- 
tatem  and  in  perpetuam,  etc.)  In  any  case  where  it  is  neces- 
sary, in  order  to  prevent  a  failure  or  delay  of  justice,  any  of 


§§  385-386,  Ch.  13     MANUAL  OF  FEDERAL  PROCEDURE.  202 

the  courts  of  the  United  States  may  grant  a  dedimus  potes- 
tatem  to  take  depositions  according  to  common  usage ;  and  any 
circuit  court,  upon  application  to  it  as  a  court  of  equity,  may, 
according  to  the  usages  of  chancery,  direct  depositions  to  be 
taken  in  perpetuam  rei  memoriam,  if  they  relate  to  any  mat- 
ters that  may  be  cognizable  in  any  court  of  the  United  States. 
And  the  provisions  of  sections  eight  hundred  and  sixty-three, 
eight  hundred  and  sixty-four,  and  eight  hundred  and  sixty- 
five,  shall  not  apply  to  any  deposition  to  be  taken  under  the 
authority  of  this  section."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  189 ; 
3  U.  S.  Comp.  Stats.  1916,  §  1477.) 

§  385.    Witnesses  Exempt  from  Attendance — Depositions  Un- 
der a  Commission. 

§  870,  Rev.  Stats.  "No  witness  shall  be  required,  under  the 
provisions  of  either  of  the  two  preceding  sections  (§§  868,  869, 
R.  S.),  to  attend  at  any  place  out  of  the  county  where  he  re- 
sides, nor  more  than  forty  miles  from  the  place  of  his  resi- 
dence, to  give  his  deposition ;  nor  shall  any  witness  be  deemed 
guilty  of  contempt  for  disobeying  any  subpoena  directed  to 
him  by  virtue  of  the  said  sections,  unless  his  fee  for  going  to, 
returning  from,  and 'one  day's  attendance  at  the  place  of  ex- 
amination, are  paid  or  tendered  to  him  at  the  time  of  the  ser- 
vice of  the  subpoena."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  195; 
3  IT.  S.  Comp.  Stats.  1916,  §  1481.) 

§  386.     Compelling  Attendance  and  Testimony  of  Witnesses 
for  Depositions  Under  Commission. 

§  <S£<9,  Rev.  Stats.  "When  a  commission  is  issued  by  any 
court  of  the  United  States  for  taking  the  testimony  of  a  wit- 
ness named  therein  at  any  place  within  any  district  or  terri- 
tory, the  clerk  of  any  court  of  the  United  States  for  such  dis- 
trict or  territory  shall,  on  the  application  of  either  party  to 
the  suit,  or  of  his  agent,  issue  a  subpoena  for  such  witness, 
commanding  him  to  appear  and  testify  before  the  commis- 
sioner named  in  the  commission,  at  a  time  and  place  stated 
in  the  subpoena;  and  if  any  witness,  after  being  duly  served 
with  such  subpoena,  refuses  or  neglects  to  appear,  or,  after 
appearing,  refuses  to  testify,  not  being  privileged  from  giv- 
ing testimony,  and  such  refusal  or  neglect  is  proven  to  the 


203  DEPOSITIONS.  Ch.  13,  §  387 

satisfaction  of  any  judge  of  the  court  whose  clerk  issues  such 
subpoena,  such  judge  may  proceed  to  enforce  obedience  to  the 
process,  or  punish  the  disobedience,  as  any  court  of  the  United 
States  may  proceed  in  case  of  disobedience  to  process  of  sub- 
poena to  testify  issued  by  such  court."  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  193;  3  U.  S.  Comp.  Stats.  1916,  §  1479.) 

§  387.     Compelling1  Production  of  Papers,  Written  Instruments, 
Books  or  Documents  in  Taking  Depositions  Under  a  Commission. 

§  869,  Rev.  Stats.  "(Subpoena  duces  tecum  under  a  dedi- 
vnus  potestatem.)  When  either  party  in  such  suit  applies  to 
any  judge  of  a  United  States  court  in  such  district  or  terri- 
tory for  a  subpoena  commanding  the  witness,  therein  to  be 
named,  to  appear  and  testify  before  said  commissioner,  at  the 
time  and  place  to  be  stated  in  the  subpoena,  and  to  bring  with 
him  and  produce  to  such  commissioner  any  paper  or  writing 
or  written  instrument  or  book  or  other  document,  supposed 
to  be  in  the  possession  or  power  of  such  witness,  and  to  be  de- 
scribed in  the  subpoena,  such  judge,  on  being  satisfied  by  the 
affidavit  of  the  person  applying,  or  otherwise,  that  there  is  rea- 
son to  believe  that  such  paper,  writing,  written  instrument, 
book,  or  other  document  is  in  the  possession  or  power  of  the 
witness,  and  that  the  same,  if  produced,  would  be  competent 
and  material  evidence  for  the  party  applying  therefor,  may 
.  order  the  clerk  of  said  court  to  issue  such  subpoena  accord- 
ingly. And  if  the  witness,  after  being  served  with  such  sub- 
poena, fails  to  produce  to  the  commissioner  at  the  time  and 
place  stated  in  the  subpoena,  any  such  paper,  writing,  written 
instrument,  book,  or  other  document,  being  in  his  possession 
or  power,  and  described  in  the  subpoena,  and  such  failure  is 
proved  to  the  satisfaction  of  said  judge,  he  may  proceed  to 
enforce  obedience  to  said  process  of  subpoena,  or  punish  the 
disobedience  in  like  manner  as  any  court  of  the  United  States 
may  proceed*  in  case  of  disobedience  to  like  process  issued  by 
such  court.  When  any  such  paper,  writing,  written  instru- 
ment, book,  or  other  document  is  produced  to  such  commis- 
sioner, he  shall,  at  the  cost  of  the  party  requiring  the  same, 
cause  to  be  made  a  correct  copy  thereof,  or  of  so  much  thereof 
as  shall  be  required  by  either  of  the  parties."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  194;  3  U.  S.  Comp.  Stats.  191fi.  §  1480.) 


§§  388-390,  Ch.  13     MANUAL  OF  FEDERAL  PROCEDURE.  204 

§  388.    Depositions    to    Perpetuate    Testimony    Under    State 
Laws — Admissible  in  Court's  Discretion. 

§  867,  Rev.  Stats.  "Any  court  of  the  United  States  may, 
in  its  discretion,  admit  in  evidence  in  any  cause  before  it  any 
deposition  taken  in  perpetuam  rei  memoriam,  which  would  be 
so  admissible  in  a  court  of  the  state  wherein  such  cause  is 
pending,  according  to  the  laws  thereof."  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  192;  3  U.  S.  Comp.  Stats.  1916,  §  1478.) 

§  389.    Depositions  may  be  Taken  in  Mode  Prescribed  by  State 
Law. 

Act  March  9,  1892,  c.  14.  "That  in  addition  to  the  mode 
of  taking  the  depositions  of  witnesses  in  causes  pending  at  law 
or  equity  in  the  district  and  circuit  courts  of  the  United  States, 
it  shall  be  lawful  to  take  the  depositions  or  testimony  of  wit- 
nesses in  the  mode  prescribed  by  the  law  of  the  state  in  which 
the  courts  are  held."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  225; 
3  U.  S.  Comp.  Stats.  1916,  §  1476.) 

§  390.    Depositions  in  Equity  Under  Court  Order  Before  Com- 
missioner, Master  or  Examiner. 

Equity  Rule  52.  "Witnesses  who  live  within  the  district, 
and  whose  testimony  may  be  taken  out  of  court  by  these  rules, 
may  be  summoned  to  appear  before  a  commissioner  appointed 
to  take  testimony,  or  before  a  master  or  examiner  appointed  in 
any  cause,  by  subpoena  in  the  usual  form,  which  may  be  issued 
by  the  clerk  in  blank  and  filled  up  by  the  party  praying  the 
same,  or  by  the  commissioner,  master,  or  examiner,  requiring 
the  attendance  of  the  witnesses  at  the  time  and  place  specified, 
who  shall  be  allowed  for  attendance  the  same  compensation 
as  for  attendance  in  court;  and  if  any  witness  shall  refuse  to 
appear  or  give  evidence  it  shall  be  deemed  a  contempt  of  the 
court,  which  being  certified  to  the  clerk's  office  by  the  commis- 
sioner, master,  or  examiner,  an  attachment  may  issue  there- 
upon by  order  of  the  court  or  of  any  judge  thereof,  in  the 
same  manner  as  if  the  contempt  were  for  not  attending,  or  for 
refusing  to  give  testimony  in  the  court. 

"In  case  of  refusal  of  witnesses  to  attend  or  be  sworn  or  to 
answer  any  question  put  by  the  commissioner,  master  or  ex- 
aminer or  by  counsel  or  solicitor,  the  same  practice  shall  be 


205  DEPOSITIONS.  Ch.  13,  §§  391-393 

adopted  as  is  now  practiced  with  respect  to  witnesses  to  be  pro- 
duced on  examination  before  an  examiner  of  said  court  on 
written  interrogatories."  (3  U.  S.  Comp.  Stats.  1916,  §  1536, 
p.  2519;  Foster's  Federal  Practice,  5th  ed.,  p.  1100,  §  340, 
p.  1104,  §341,  p.  1133,  §351;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  pp.  293,  493,  494,  495,  523,  525.} 

§  391.    Same— Notice. 

Equity  Ride  53.  "Notice  shall  be  given  by  the  respective 
counsel  or  parties  to  the  opposite  counsel  or  parties  of  the  time 
and  place  of  examination  before  an  examiner  or  like  officer 
for  such  reasonable  time  as  the  court  or  officer  may  fix  by  order 
in  each  case."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2519; 
Foster's  Federal  Practice,  5th  ed.,  p.  1133,  §  352;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  pp.  500,  522.) 

§  392.    Deposition  in  Equity  Published  on  Filing. 

Equity  Rule  55.  "Upon  the  filing  of  any  deposition  or  affi- 
davit taken  under  these  rules  or  any  statute,  it  shall  be  deemed 
published,  unless  otherwise  ordered  by  the  court."  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2520;  Foster's  Federal  Practice, 
5th  ed.,  p.  1133,  §  352;  Simkins'  Federal  Equity  Suit,  3d  ed., 
p.  534.) 

§  393.    Letters  Rogatory  or  Commissions  to  Take  Depositions 
of  Witnesses  in  Foreign  Countries. 

§  875,  Rev.  Stats.  "When  any  commission  or  letter  roga- 
tory,  issued  to  take  the  testimony  of  any  witness  in  a  foreign 
country,  in  any  suit  in  which  the  United  States  are  parties 
or  have  an  interest,  is  executed  by  the  court  or  the  commis- 
sioner to  whom  it  is  directed,  it  shall  be  returned  by  such  court 
or  commissioner  to  the  minister  or  consul  of  the  United  States 
nearest  the  place  where  it  is  executed.  On  receiving  the  same, 
the  said  minister  or  consul  shall  indorse  thereon  a  certificate, 
stating  when  and  where  the  same  was  received,  and  that  the 
said  deposition  is  in  the  same  condition  as  when  he  received 
it;  and  he  shall  thereupon  transmit  the  said  letter  or  commis- 
sion, so  executed  and  certified,  by  mail,  to  the  clerk  of  the  court 
from  which  the  same  issued,  in  the  manner  in  which  his  offi- 
cial dispatches  are  transmitted  to  the  government.  And  tho 


§  394,  Ch.  13  MANUAL  OP  FEDERAL  PROCEDURE.  206 

testimony  of  witnesses  so  taken  and  returned  shall  he  read  as 
evidence  on  the  trial  of  the  suit  in  which  it  was  taken,  with- 
out objection  as  to  the  method  of  returning  the  same.  When 
letters  rogatory  are  addressed  from  any  court  of  a  foreign 
country  to  any  circuit  court  of  the  United  States,  a  commis- 
sioner of  such  circuit  court  designated  by  said  court  to  make 
an  examination  of  the  witnesses  mentioned  in  said  letters,  shall 
have  power  to  compel  the  witnesses  to  appear  and  depose  in 
the  same  manner  as  witnesses  may  be  compelled  to  appear  and 
testify  in  courts. "  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  196  j  3  U.  S. 
Comp.  Stats.  1916,  §  1486.) 

§  394.    Taking  Testimony  to  be  Used  in  Foreign  Countries. 

§  4071,  Rev.  Stats.  "The  testimony  of  any  witness  residing 
within  the  United  States,  to  be  used  in  any  suit  for  the  re- 
covery of  money  or  property  depending  in  any  court  in  any 
foreign  country  with  which  the  United  States  are  at  peace, 
and  in  which  the  government  of  such  foreign  country  shall  be 
a  party  or  shall  have  an  interest,  may  be  obtained,  to  be  used 
in  such  suit.  If  a  commission  or  letters  rogatory  to  take  such 
testimony,  together  with  specific  written  interrogatories,  ac- 
companying the  same,  and  addressed  to  such  witness,  shall 
have  been  issued  from  the  court  in  which  such  suit  is  pending, 
on  producing  the  same  before  the  district  judge  of  any  dis- 
trict where  the  witness  resides  or  shall  be  found,  and  on  due 
proof  being  made  to  such  judge  that  the  testimony  of  any  wit- 
ness is  material  to  the  party  desiring  the  same,  such  judge 
shall  issue  a  summons  to  such  witness  requiring  him  to  appear 
before  the  officer  or  commissioner  named  in  such  commission 
or  letters  rogatory,  to  testify  in  such  suit.  And  no  witness 
shall  be  compelled  to  appear  or  to  testify  under  this  section 
except  for  the  purpose  of  answering  such  interrogatories  so 
issued  and  accompanying  such  commission  or  letters :  Provided, 
That  when  counsel  for  all  the  parties  attend  the  examination, 
they  may  consent  that  questions  in  addition  to  those  accom- 
panying the  commission  or  letters  rogatory  may  be  put  to  the 
witness,  unless  the  commission  or  letters  rogatory  exclude  such 
additional  interrogatories.  The  summons  shall  specify  the 
time  and  place  at  which  the  witness  is  required  to  attend, 
which  place  shall  be  within  one  hundred  miles  of  the  place 
where  the  witness  resides  or  shall  be  served  with  such  sum- 


207  DEPOSITIONS.  Ch.  13,  §§  395-396 

mons."     (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  222 ;  7  U.  S.  Comp. 
Stats.  1916,  §  7619.) 

§  395.    Same — Witness  Need  not  Criminate  Himself. 

§  4072,  Rev.  Stats.  "No  witness  shall  be  required,  on  such 
examination  or  any  other  under  letters  rogatory,  to  make  any 
disclosure  or  discovery  which  shall  tend  to  criminate  him  either 
under  the  laws  of  the  state  or  territory  within  which  such  ex- 
amination is  had,  or  any  other,  or  any  foreign  state."  (3  Fed. 
Stats'.  Ann.,  2d  ed.,  p.  223;  7  U.  S.  Comp.  Stats.  1916,  §  7620.) 

§  396.    Publicity  in  Taking  Depositions  in  Anti-trust  Cases. 

Act  March  3,  1913,  c.  114.  "That  in  the  taking  of  deposi- 
tions of  witnesses  for  use  in  any  suit  in  equity  brought  by  the 
United  States  under  the  act  entitled  'An  Act  to  Protect  Trade 
and  Commerce  against  Unlawful  Restraints  and  Monopolies,' 
approved  July  second,  eighteen  hundred  and  ninety,  and  in 
the  hearings  before  any  examiner  or  special  master  appointed 
to  take  testimony  therein,  the  proceedings  shall  be  open  to  the 
public  as  freely  as  are  trials  in  open  court;  and  no  order  ex- 
cluding the  public  from  attendance  on  any  such  proceedings 
shall  be  valid  or  enforceable."  (37  Stats.  731;  8  U.  S.  Comp. 
Stats.  1916,  §  8826,  p.  9665.) 


Ch.  14  MANUAL  OF  FEDERAL  PROCEDURE.  208 


CHAPTER  14. 

(X)STS  AND  FEES. 

SEC. 

400.  In  General. 

401.  Taxable  Costs  and  Fees. 

402.  Bill  of  Costs. 

403.  Same — Must  be  Verified. 

404.  Costs — Indigent  Parties. 

405.  Payment  of  Costs  and  Witness  Fees  for  Indigent  Defendant  in   Crim- 

inal Cases. 

406.  Costs  not  Allowed  for  Recovery  Less  Than  Five  Hundred  Dollars,  Where 

Amount  in  Controversy  Material  or  Libelant  Recovers  Less  Than 
Three  Hundred  Dollars. 

407.  Costs  Where  Cases  can  be  Consolidated. 

408.  Mode  of  Recovery  of  Fees. 

409.  Fees  of  Attorneys,  Solicitors,  Proctors. 

410.  Attorney's  Liability  for  Costs  Vexatiously  Increased. 

411.  Fees — Salary — United  States  District  Attorney. 

412.  Clerks'  Fees. 

413.  Marshals'  Fees. 

414.  Attorneys,  Clerks  and  Marshals'  Fees  Under  Civil  Rights  Laws. 

415.  Fees  of  United  States  Commissioners. 

416.  Same — Under  Chinese  Exclusion  Laws. 

417.  Costs  and  Witness  Fees  in  Extradition  Cases. 

418.  Witnesses'  Fees. 

419.  Court  Officer  not  Entitled  to  Witness  Fees. 

420.  Witness  Fees  Depositions  in  District  of  Columbia. 

421.  Same — Under  Letters  Rogatory  from  a  Foreign  Country. 

422.  Witness  Fees  of  Seamen. 

423.  United  States  Liable  for  Only  Four  Witness  Fees  on  Preliminary  Crim- 

inal Examination. 

424.  Witness  Fees  in  Prize  Cases — How  Paid. 

425.  Juror  Fees — Grand  and  Petit. 

426.  Mode  of  Payment  Juror  and  Witness  Fees. 

427.  Printer's  Fees. 

428.  Same— Folio  Defined. 

429.  Appraiser's  Fees  on  Execution  Sales. 

430.  No   Costs   Against   United   States   in   Internal   Revenue   Suits  upon  In- 

formation. 

431.  No  Costs  Against  Prosecutor  nor  for  Claimant  When  Reasonable  Cause 

for  Seizure. 


209  COSTS  AND  FEES.  Ch.  14,  §§  400-401 

432.  Successful  Claimant  Entitled  to  Possession  When  His  Own  Costs  Paid. 

433.  Double  Costs   Against   Nonsuited   Plaintiff  in  Action  Against   Revenue 

Officer. 

434.  Defendant  Subjected  to  Fine,  Forfeiture  or  Conviction  Shall  Pay  Costa 

of  Prosecution. 

435.  Defendant  to  be  Awarded  Costs  if  Informer  on  Penal  Statute  Nonsuited 

or  Discontinues. 

436.  Informer  on  Penal  Statute  to  Pay  Costs  if  Nonsuit  or  Discontinuance. 

437.  Costs  in  Copyright  Suits. 

438.  Costs  on  Infringement  of  Patent. 

§  400.  In  General.  Costs  and  fees  of  actions  or  suits  pend- 
ing or  determined  in  the  federal  courts  are  regulated  by  the  fed- 
eral statutes.1  On  removal  the  costs  that  have  accrued  in  the  state 
court  under  state  statutes  will  be  taxable  in  the  federal  courts,2  and 
the  costs  provided  by  state  statutes  will  be  taxed  in  the  federal 
courts,  for  statutory  proceedings  adopted  by  the  federal  courts 
from  the  state  practice.3  Where  the  state  statute  provides  that  a 
nonresident  shall  give  security  for  costs,  the  federal  courts  will  en- 
force same  in  a  common-law  action.4 

§  401.    Taxable  Costs  and  Fees. 

§823,  Rev.  Stats.  "The  following  and  no  other  compensa- 
tion shall  be  taxed  and  allowed  to  attorneys,  solicitors,  and 
proctors  in  the  courts  of  the  United  States,  to  district  attorneys, 
clerks  of  the  circuit  and  district  courts,  marshals,  commission- 
ers, witnesses,  jurors,  and  printers  in  the  several  states,  and 
territories,  except  in  cases  otherwise  expressly  provided  by  law. 
But  nothing  herein  shall  be  construed  to  prohibit  attorneys, 
solicitors,  and  proctors  from  charging  to  and  receiving  from 
their  clients,  other  than  the  government,  such  reasonable  com- 
pensation for  their  services,  in  addition  to  the  taxable  costs,  as 

1  Bradford  v.  Bradford,  2  Flipp.  280,  Fed.  Cas.  No.  1766;   Heckman  r. 
Mackey,  32  Fed.  574;  Carlisle  Y.  Cooper,  64  Fed.  475,  12  C.  C.  A.  235. 

2  Cleaver  v.  Traders'  Ins.  Co.,  40  Fed.  863;  Wolf  v.  Connecticut  etc.  Ins. 
Co.,  1  Flipp.  377,  Fed.  Cas.  No.  17,924,  1  Cent.  L.  J.  301;  GUnther  v.  Liver- 
pool etc.  Ins.  Co.,  10  Fed.  830,  20  Blatchf.  390;  National  Steamship  Co.  v. 
Tugman,  67  Fed.  16. 

3  Huntress  v.  Epsom,  15  Fed.  732;  Morrison  v.  Bernards  Tp.,  35  Fed.  400; 
New  Hampshire  Land  Co.  -v.  Tilton,  29  Fed.   764. 

4  Henning  v.  Western  Union  Tel.  Co.,  40  Fed.  658.     See,  also,  Schofield  T. 
Palmer,  134  Fed.  754;  Winklcy  Co.  v.  Bowen  Mfg.  Co.,  180  Fed.  624. 

» 

Manual — 14 


§§  402-404,  Ch.  14    MANUAL  OF  FEDERAL  PROCEDURE.  210 

may  be  in  accordance  with  general  usage  in  their  respective 
states,  or  may  be  agreed  upon  between  the  parties."  (2  Fed. 
Stats.  Ann.,  2d  ed.,  p.  624;  2  U.  S.  Comp.  Stats.  1916,  §  1375.) 

§  402.    Bill  of  Costs. 

§  983,  Rev.  Stats.  "The  bill  of  fees  of  the  clerk,  marshal, 
and  attorney,  and  the  amount  paid  printers  and  witnesses, 
and  lawful  fees  for  exemplifications  and  copies  of  papers  neces- 
sarily obtained  for  use  on  trials  in  cases  whereby  law  costs  are 
recoverable  in  favor  of  the  prevailing  party,  shall  be  taxed 
by  a  judge  or  clerk  of  the  court,  and  be  included  in  and  form 
a  portion  of  a  judgment  or  decree  against  the  losing  party. 
Such  taxed  bills  shall  be  filed  with  the  papers  in  the  cause." 
(2  Fed.  Stats.  Ann.,  2d  ed.,  p.  644;  3  U.  S.  Comp.  Stats.  1916, 
§  1624;  Foster's  Federal  Practice,  5th  ed.,  pp.  1324,  1337.) 

§  403.    Same— Must  be  Verified. 

§  984,  Rev.  Stats.  "Before  any  bill  of  costs  shallbe  taxed 
by  any  judge  or  other  officer,  or  allowed  by  any  officer  of  the 
Treasury,  in  favor  of  clerks,  marshals,  commissioners,  or  dis- 
trict attorneys,  the  party  claiming  such  bill  shall  prove  by 
his  own  oath,  or  that  of  some  other  person  having  knowledge 
of  the  facts,  to  be  attached  to  such  bill,  and  filed  therewith, 
that  the  services  charged  therein  have  been  actually  and  neces- 
sarily performed,  as  therein  stated."  (2  Fed.  Stats.  Ann., 
2d  ed.,  p.  646 ;  3  U.  S.  Comp.  Stats.  1916,  §  1625;  Foster's  Fed- 
eral Practice,  5th  ed.,  p.  1337.) 

§  404.     Costs — Indigent  Parties. 

§  1,  Act  July  20,  1892,  c.  209.  "That  any  citizen  of  the 
United  States  entitled  to  commence  or  defend  any  suit  or  ac- 
tion, civil  or  criminal,  in  any  court  of  the  United  States,  may, 
upon  the  order  of  the  court,  commence  and  prosecute  or  de- 
fend to  conclusion  any  suit  or  action,  or  a  writ  of  error,  or 
an  appeal  to  the  circuit  court  of  appeals,  or  to  the  Supreme 
Court  in  such  suit  or  action,  including  all  appellate  proceed- 
ings, unless  the  trial  court  shall  certify  in  writing  that  in  the 
opinion  of  the  court  such  appeal  or  writ  of  error  is  not  taken 
in  good  faith,  without  being  required  to  prepay  fees  or  costs 
or  for  the  printing  of  the  record  in  the  appellate  court  or  give 


211  COSTS  AND  FEES.  Ch.  14,  §  405 

security  therefor,  before  or  after  bringing  suit  or  action,  or 
upon  suing  out  a  writ  of  error  or  appealing,  upon  filing  in  said 
court  a  statement  under  oath  in  writing  that  because  of  his 
poverty  he  is  unable  to  pay  the  costs  of  said  suit  or  action  or 
of  such  writ  of  error  or  appeal,  or  to  give  security  for  the 
same,  and  that  he  believes  that  he  is  entitled  to  the  redress  he 
seeks  by  such  suit  or  action  or  writ  of  error  or  appeal,  and 
setting  forth  briefly  the  nature  of  his  alleged  cause  of  action, 
or  appeal."  (As  amended  Act  June  25,  1910,  c.  435;  2  Fed. 
Stats.  Ann.,  2d  ed.,  p.  647;  3  U.  S.  Comp.  Stats.  1916,  §  1626.) 

§  2,  Act  July  20,  1892,  c.  209.  ' '  After  any  such  suit  or  ac- 
tion shall  have  been  brought,  or  that  is  now  pending,  the  plain- 
tiff may  answer  and  avoid  a  demand  for  fees  or  security  for 
costs  by  filing  a  like  affidavit,  and  wilful  false  swearing  in  any 
affidavit  provided  for  in  this  or  the  previous  section,  shall  be 
punishable  as  perjury  is  in  other  cases."  (2  Fed.  Stats.  Ann., 
2d  ed.,  p.  650;  3  U.  S.  Comp.  Stats.  1916,  §  1627.) 

§  3,  Act  July  20,  1892,  c.  209.  "The  officers  of  court  shall 
issue,  serve  all  process,  and  perform  all  duties  in  such  eases, 
and  witnesses  shall  attend  as  in  other  cases,  and  the  plaintiff 
shall  have  the  same  remedies  as  are  provided  by  law  in  other 
cases."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  651;  3  U.  S.  Comp. 
Stats.  1916,  §  1628.) 

§4,  Act  July  20,  1892,  c.  209.  "The  court  may  request 
any  attorney  of  the  court  to  represent  such  poor  person,  if  it 
deems  the  cause  worthy  of  a  trial,  and  may  dismiss  any  such 
cause  so  brought  under  this  act  if  it  be  made  to  appear  that 
the  allegation  of  poverty  is  untrue,  or  if  said  court  be  satis- 
fied that  the  alleged  cause  of  action  is  frivolous  or  malicious. 
(2  Fed.  Stats.  Ann.,  2d  ed.,  p.  1;  3  U.  S.  Comp.  Stats.  1916, 
§  1629.) 

§  5,  Act  July  20, 1892,  c.  209.  "Judgment  may  be  rendered 
for  costs  at  the  conclusion  of  the  suit,  as  in  other  cases:  Pro- 
vided, That  the  United  States  shall  not  be  liable  for  any  of  the 
casts  thus  incurred."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  652; 
3  U.  S.  Comp.  Stats.  1916,  §  1630.) 

§  405.    Payment  of  Costs  and  Witness  Fees  for  Indigent  De- 
fendant in  Criminal  Cases. 

Part  §  878,  Rev.  Stats.  "  ...  In  such  case  the  costs  in- 
curred by  the  process  and  the  fees  of  the  witnesses  shall  be 


§§  406-407,  Ch.  14     MANUAL  OF  FEDERAL  PROCEDURE.  212 

paid  in  the  same  manner  that  similar  costs  and  fees  are  paid 
in  case  of  witnesses  subpoenaed  in  behalf  of  the  United  States." 
(Fed.  Stats.  Ann.,  2d  ed.,  title  "Witnesses";  3  U.  S.  Comp. 
Stats.  1916,  §  1489,  p.  2410;  Foster's  Federal  Practice,  5th  ed., 
p.  1719.) 

§406.  Costs  not  Allowed  for  Recovery  Less  Than  Five  Hun- 
dred Dollars,  Where  Amount  in  Controversy  Material  or  Libelant 
Recovers  Less  Than  Three  Hundred  Dollars.  By  §  291,  Jud. 
Code,  the  powers  and  duties  of  the  former  circuit  courts  are  con- 
ferred on  the  district  courts. 

§  968,  Rev.  Stats.,  confers  on  the  circuit  courts  authority  to  im- 
pose costs  where  recovery  is  less  than  a  specified  amount.  As  this 
section  is  not  expressly  repealed,  it  would  seem  that  when  in  a 
district  court  "a  plaintiff  in  an  action  at  law  originally  brought 
there,  or  a  petitioner  in  equity,  other  than  the  United  States,  re- 
covers less  than  the  sum  or  value  of  five  hundred  dollars,  exclusive 
of  costs,  in  a  case  which  cannot  be  brought  there  unless  the  amount 
in  dispute,  exclusive  of  costs,  exceeds  said  sum  or  value;  or  a 
libelant,  upon  his  own  appeal,  recovers  less  than  the  sum  or  value 
of  three  hundred  dollars,  exclusive  of  costs,  he  shall  not  be  al- 
lowed, but  at  the  discretion  of  the  court,  may  be  adjudged 
to  pay  costs."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  636;  3  U.  S.  Comp. 
Stats.  1916,  §1609;  Foster's  Federal  Practice,  5th  ed.,  pp.  1278, 
1288.) 

\ 

§  407.     Costs  Where  Cases  can  be  Consolidated. 

§  921,  Rev.  Stats.  "When  causes  of  a  like  nature  or  rela- 
tive to  the  same  question  are  pending  before  a  court  of  the 
United  States,  or  of  any  territory,  the  court  may  make  such 
orders  and  rules  concerning  proceedings  therein  as  may  be 
conformable  to  the  usages  of  courts,  for  avoiding  unnecessary 
costs  or  delay  in  the  administration  of  justice."  (3  Fed. 
Stats.  Ann.,  2d  ed.,  title  "Judiciary";  3  U.  S.  Comp.  Stats. 
1916,  §  1547;  Foster's  Federal  Practice,  5th  ed.,  p.  1544.) 

§  977,  Rev.  Stats.  ' '  If  several  actions  or  processes  are 
instituted,  in  a  court  of  the  United  States  or  one  of  the  Ter- 
ritories, against  persons  who  might  legally  be  joined  in  one 


213  COSTS  AND   FEES.  Ch.  14,  §§  408-409 

action  or  process  touching  the  matter  in  dispute,  the  party 
pursuing  the  same  shall  not  recover,  on  all  of  the  judgments 
therein  which  may  be  rendered  in  his  fav%or,  the  costs  of  more 
than  one  action  or  process,  unless  special  cause  for  said  several 
actions  or  processes  is  satisfactorily  shown  on  motion  in  open 
court."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  643;  3  U.  S.  Comp. 
Stats.  1916,  §  1618.) 

§  978,  Rev.  Stats.  "When  proceedings  are  had  before  a 
court  of  the  United  States  or  of  the  Territories,  on  several 
libels  against  any  vessel  and  cargo,  which  might  legally  be 
joined  in  one  libel,  there  shall  not  be  allowed  thereon  more 
costs  than  on  one  libel,  unless  special  cause  for  libeling  the 
vessel  and  cargo  separately  is  satisfactorily  shown  on  motion 
in  open  court.  And  in  proceedings  on  several  libels  or  in- 
formations against  any  cargo  or  parts  of  cargo,  or  merchan- 
dise seized  as  forfeited  for  the  same  cause,  there  shall  not  be 
allowed  more  costs  than  would  be  lawful  on  one  libel  or  in- 
formation, whatever  may  be  the  number  of  owners  or  con- 
signees therein  concerned.  But  allowance  may  be  made  on  one 
libel  or  information  for  the  costs  incidental  to  several  claims." 
(2  Fed.  Stats.  Ann.,  2d  ed.,  p.-643;  3  U.  S.  Comp.  Stats.  1916, 
§  1619.) 

§  408.    Mode  of  Recovery  of  Fees. 

§  857,  Rev.  Stats.  ' '  The  fees  and  compensations  of  the  offi- 
cers and  persons  hereinbefore  mentioned,  except  those  which 
are  directed  to  be  paid  out  of  the  Treasury,  shall  be  recovered 
in  like  manner  as  the  fees  of  the  officers  of  the  states  respec- 
tively for  like  services  are  recovered."  (4  Fed.  Stats.  Ann., 
2d  ed.,  p.  710;  2  U.  S.  Comp.  Stats.  1916,  §  1463.) 

§  409.     Fees  of  Attorneys,  Solicitors,  Proctors. 

§  824,  Rev.  Stats.  "On  a  trial  before  a  jury,  in  civil  or 
criminal  causes  or  before  referees,  or  on  a  final  hearing  in 
equity  or  admiralty,  a  docket  fee  of  twenty  dollars :  Provided, 
That  in  cases  of  admiralty  and  maritime  jurisdiction,  where 
the  libclant  recovers  less  than  fifty  dollars,  the  docket  fee  of 
his  proctor  shall  be  but  ten  dollars. 


§  410,  Cll.  14  MANUAL  OF  FEDERAL  PEOCEDURE.  214 

"In  cases  at  law,  when  judgment  is  rendered  without  a 
jury,  ten  dollars. 

"In  cases  at  l#w,  when  the  cause  is  discontinued,  five  dol- 
lars. 

"For  scire  facias,  and  other  proceedings  on  recognizances, 
five  dollars. 

"For  each  deposition  taken  and  admitted  in  evidence  in  a 
cause,  two  dollars  and  fifty  cents. 

"For  services  rendered  in  cases  removed  from  a  district 
to  a  circuit  court  by  writ  of  error  or  appeal,  five  dollars. 

"For  examination  by  a  district  attorney,  before  a  judge  or 
commissioner,  of  persons  charged  with  crime,  five  dollars  a 
day  for  the  time  necessarily  employed. 

"For  each  day  of  his  necessary  attendance  in  a  court  of  the 
United  States  on  the  business  of  the  United  States,  when  the 
court  is  held  at  the  place  of  his  abode,  five  dollars;  and  for 
his  attendance  when  the  court  is  held  elsewhere,  five  dollars 
for  each  day  of  the  term. 

"For  traveling  from  the  place  of  his  abode  to  the  place 
of  holding  any  court  of  the  United  States  in  his  district,  or 
to  the  place  of  any  examination  before  a  judge  or  commis- 
sioner, of  a  person  charged  with  crime,  ten  cents  a  mile  for 
going  and  ten  cents  a  mile  for  returning. 

"When  an  indictment  for  crime  is  tried  before  a  jury  and 
a  conviction  is  had,  the  district  attorney  may  be  allowed,  in 
addition  to  the  attorney's  fees  herein  provided,  a  counsel  fee, 
in  proportion  to  the  importance  and  difficulty  of  the  cause, 
not  exceeding  thirty  dollars."  (4  Fed.  Stats.  Ann.,  2d  ed., 
p.  651;  2  U.  S.  Comp.  Stats.  1916,  §  1378;  Foster 's  Federal 
Practice,  5th  ed.,  pp.  1294,  1295.) 

§  410.    Attorney's  Liability  for  Costs  Vexatiously  Increased. 

§  982,  Rev.  Stats.  "If  any  attorney,  proctor,  or  other  per- 
son admitted  to  conduct  causes  in  any  court  of  the  United 
States,  or  of  any  Territory,  appears  to  have  multiplied  the 
proceedings  in  any  cause  before  such  court,  so  as  to  increase 
costs  unreasonably  and  vexatiously,  he  shall  be  required,  by 
order  of  the  court,  to  satisfy  any  excess  of  costs  so  increased." 
(2  Fed.  Stats.  Ann.,  2d  ed.,  p.  644;  3  U.  S.  Comp.  Stats.  191G, 
§  1623;  Foster's  Federal  Practice,  5th  ed.,  p.  1280.) 


215  COSTS  AND  FEES.  Ch.  14,  §§  411-412 

§  411.  Fees— Salary— United  States  District  Attorney.  By  §  6, 
Act  May  28,  1896,  c.  252,  4  Fed.  Stats.  Ann.  2d  ed.,  p.  718, 
2  U.  S.  Comp.  Stats.  1916,  §  1418,  all  fees  and  emoluments  au- 
thorized by  law  to  be  paid  United  States  district  attorneys  shall 
be  charged  as  heretofore,  and  shall  be  collected  as  far  as  possible 
and  paid  into  the  Treasury.  The  official  himself,  however,  receives 
a  salary,  provided  in  §  7  of  the  act.  (4  Fed.  Stats.  Ann.,  2d  ed., 
p.  714;  2  U.  S.  Comp.  Stats.  1916,  §  1419.) 

(The  District  of  Columbia  does  not  seem  to  be  included. 

The  following  are  some  of  the  provisions:  Two  per  cent  on  all 
moneys  collected  or  realized  in  any  suit  or  proceeding  arising  under 
the  revenue  laws.  (§  825,  Rev.  Stats.;  4  Fed.  Stats.  Ann.,  2d  ed., 
p.  654;  2  U.  S.  Comp.  Stats.  1916,  §1379.) 

No  fees  allowed  on  a  bond  left  for  collection,  or  on  which  suit 
is  started,  unless  the  party  has  neglected  to  apply  for  renewal  for 
more  than  twenty  days  after  maturity.  (§  826,  Rev.  Stats. ;  4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  £56;  2  U.  S.  Comp.  Stats.  1916,  §  1380.) 

Fees  for  defense  of  revenue  officers  do  not  seem  to  be  a  part  of 
taxable  costs.  This  provision  would  only  apply  to  District  of 
Columbia.  (§  827,  Rev.  Stats.;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  656; 
2  U.  S.  Comp.  Stats.  1916,  §  1381.) 

Double  fees  would  seem  to  be  taxable  in  Oregon  and  Nevada 
under  §  837,  Rev.  Stats.  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  702 ;  2  U.  S. 
Comp.  Stats.  1916,  §  1403.) 

Where  two  or- more  indictments,  suits,  or  proceedings  should  be 
joined,  only  one  bill  of  costs  allowed.  (§980,  Rev.  Stats.;  4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  711;  3  U.  S.  Comp.  Stats.  1916,  §  1621.) 

§412.    Clerks'  Fees. 

§  828,  Rev.  Stats.  "For  issuing  and  entering  every  process, 
commission,  summons,  capias,  execution,  warrant,  attachment, 
or  other  writ,  except  a  writ  of  venire,  or  a  summons  or  sub- 
poena for  a  witness,  one  dollar. 

"For  issuing  a  writ  of  summons  or  subpoena,  twenty-five 
cents. 


§  412,  Ch.  14  MANUAL  OP  FEDERAL  PROCEDURE.  216 

"For  filing  and  entering  every  declaration,  plea,  or  other 
paper,  ten  cents. 

' '  For  administering  an  oath  or  affirmation,  except  to  a  juror, 
ten  cents. 

' '  For  taking  an  acknowledgment,  twenty-five  cents. 

"For  taking  and  certifying  depositions  to  file,  twenty  cents 
for  each  folio  of  one  hundred  words. 

"For  a  copy  of  such  deposition  furnished  to  a  party  on 
request,  ten  cents  a  folio. 

"For  entering  any  return,  rule,  order,  continuance,  judg- 
ment, decree,  or  recognizance,  or  drawing  any  bond,  or  mak- 
ing any  record,  certificate,  return,  or  report,  for  each  folio, 
fifteen  cents. 

"For  a  copy  of  any  entry  or  record,  or  of  any  paper  on 
file,  for  each  folio,  ten  cents. 

"For  making  dockets  and  indexes,  issuing  venire,  taxing 
costs,  and  all  other  services,  on  the  trial  or  argument  of.  a 
cause  where  issue  is  joined  and  testimony  given,  three  dol- 
lars. 

"For  making  dockets  and  indexes,  taxing  costs,  and  all 
other  services,  in  a  cause  where  issue  is  joined,  but  no  tes- 
timony is  given,  two  dollars. 

"For  making  dockets  and  indexes,  taxing  costs,  and  other 
services,  in  a  cause  which  is  dismissed  or  discontinued,  or 
where  judgment  or  decree  is  made  or  rendered  without  issue, 
one  dollar. 

"For  making  dockets  and  taxing  costs,  in  cases  removed 
by  writ  of  error  or  appeal,  one  dollar. 

.    "For  affixing  the  seal- of  the  court  to  any  instrument,  when 
required,  twenty  cents. 

"For  every  search  for  any  particular  mortgage,  judgment, 
or  other  lien,  fifteen  cents. 

"For  searching  the  records  of  the  court  for  judgments, 
decrees,  or  other  instruments  constituting  a  general  lien  on 
real  estate,  and  certifying  the  result  of  such  search,  fifteen 
cents  for  each  person  against  whom  such  search  is  required 
to  be  made. 

"For  receiving,  keeping,  and  paying  out  money,  in  pur- 
suance of  any  statute  or  order  of  court,  one  per  centum  on  the 
amount  so  received,  kept,  and  paid. 


217  COSTS  AND  PEES.  Ch.  14,  §  412 

"For  traveling  from  the  office  of  the  clerk,  where  he  is 
required  to  reside,  to  the  place  of  holding  any  court  required 
by  law  to  be  held,  five  cents  a  mile  for  going  and  five  cents 
for  returning,  and  five  dollars  a  day  for  his  attendance  on 
the  court  while  actually  in  session. 

"All  books  in  the  offices  of  the  clerks  of  the  (circuit  and) 
district  courts,  containing  the  docket  or  minute  of  the  judg- 
ments, or  decrees  thereof, 'shall,  during  office  hours,  be  open  to 
the  inspection  of  any  person  desiring  to  examine  the  same  with- 
out any  fees  or  charge  therefor."  (4  Fed.  Stats.  Aim.,  2d  ed., 
p.  657;  2  U.  S.  Comp.  Stats.  1916,  §  1383.) 

§  840,  Rev.  Stats.  "That  the  Clerks  of  the  several  district 
courts  in  California  and  Nevada  shall  be  entitled  to  charge  and 
receive  double  the  fees  hereinbefore  allowed  to  clerks,  and  shall 
be  allowed,  respectively,  by  the  Attorney-General,  to  retain  of 
the  fees  so  received  by  them  for  their  personal  compensation, 
over  and  above  the  necessary  expenses  of  their  offices,  including 
the  salaries  of  deputy  clerks,  and  necessary  clerk-hire  to  be 
audited  by  the  proper  accounting  officers  of  the  Treasury  De- 
partment, any  sum  not  exceeding  seven  thousand  dollars  a 
year,  nor  exceeding  that  rate  for  any  time  less  than  a  year. 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  704 ;  2  U.  S.  Comp.  Stats.  1916, 
§  1405,  p.  2299.) 

§  1,  Act  Aug.  1,  1914,  c.  223.  "That  all  Acts  and  parts  of 
Acts  authorizing  the  clerks  of  the  United  States  district  courts 
in  and  for  the  States  of  Oregon,  Montana,  and  Washington, 
respectively,  to  charge  and  collect  double  the  fees  provided 
in  section  eight  hundred  and  twenty-eight  of  the  Revised  Stat- 
utes of  the  United  States,  and  all  Acts  authorizing  United 
States  marshals  in  and  for  said  States,  respectively,  to  receive 
and  collect  double  the  fees  provided  by  section  eight  hundred 
and  twenty-nine  of  the  Revised  Statutes  of  the  United  States, 
are  hereby  repealed,  to  take  effect  from  and  after  January 
first,  nineteen  hundred  and  fifteen:  Provided,  That  no  clerk 
of  the  United  States  district  courts  in  and  for  said  States  shall 
be  allowed  by  the  Attorney-General  to  retain  of  the  fees  and 
emoluments  of  his  office,  for  his  personal  compensation,  over 
and  above  his  necessary  office  expenses,  including  the  necessary 
clerk  hire,  to  bo  audited  and  allowed  by  the  proper  account- 
ing officers  of  the  Treasury,  a  sum  exceeding  $3,500  per  year, 


§  413,  Ch.  14  MANUAL  OP  FEDERAL  PROCEDURE.  218 

to  take  effect  from  and  after  January  first,  nineteen  hundred 
and  fifteen :  Provided  further,  That  nothing  herein  shall 
operate  to  reduce  the  fees  that  the  clerks  of  the  United  States 
district  courts  and  United  States  marshals  in  any  States  other 
than  those  mentioned  herein  have  heretofore  been  authorized 
to  charge  and  collect."  (38  Stats.  654;  4  Fed.  Stats.  Ann., 
2d  ed.,  p.  705;  2  U.  S.  Comp.  Stats.  1916,  §  1406a,  p.  2300.) 

§  413.  Marshal's  Fees.  By  §  6,  Act  May  28,  1896,  c.  252,  4 
Fed.  Stats.  Ann.,  2d  ed.,  p.  718,  2  U.  S.  Comp.  Stats.  1916,  §  1418, 
all  fees  and  emoluments  authorized  by  law  to  be  paid  United 
States  marshals  shall  be  charged  as  heretofore,  and  shall  be  col- 
lected as  far  as  possible  and  paid  into  the  treasury.  The  official 
himself,  however,  receives  a  salary  as  provided  in  §  9  of  the  act. 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  736;  2  U.  S.  Comp.  Stats.  1916, 
§  1421.) 

The  District  of  Columbia  does  not  seem  to  be  included. 

§  829,  Rev.  Stats.  ''For  service  of  any  warrant,  attachment, 
summons,  capias,  or  other  writ,  except  execution,  venire,  or  a 
summons,  or  subpoena  for  a  witness,  two  dollars  for  each 
person  on  whom  service  is  made. 

"For  the  keeping  of  personal  property  attached  on  mesne 
process,  such  compensation  as  the  court,  on  petition  setting 
forth  the  facts  under  oath,  may  allow. 

"For  serving  venires  and  summoning  every  twelve  men  as 
grand  or  petit  jurors,  four  dollars,  or  thirty-three  and  one- 
third  cents  each.  In  states  where,  by  '  the  laws  thereof, 
jurors  are  drawn  by  lot,  by  constables,  or  other  offices  of 
corporate  places,  the  marshal  shall  receive,  for  each  jury, 
two  dollars  for  the  use  of  the  officers  employed  in  drawing 
and  summoning  the  jurors  and  returning  each  venire,  and 
two  dollars  for  his  own  services  in  distributing  the  venires. 
But  the  fees  for  distributing  and  serving  venires,  drawing 
and  summoning  jurors  by  township  officers,  including  the 
mileage  chargeable  by  the  marshal  for  each  service,  shall  not 
at  any  court  exceed  fifty  dollars. 

"For  holding  a  court  of  inquiry  or  other  proceedings  be- 
fore a  jury,  including  the  summoning  of  a  jury,  five  dollars ; 


2J9  COSTS  AND  PEES.  Ch.  14,  §  413 

and  no  further  compensation  shall  be  allowed  for  any  copy, 
summons,  or  notice  for  a  witness. 

"For  serving  a  writ  of  subpoena  on  a  witness,  fifty  cents; 
and  no  further  compensation  shall  be  allowed  for  any  copy, 
summons,  or  notice  for  a  witness. 

"For  serving  a  writ  of  possession,  partition,  execution,  or 
any  final  process,  the  same  mileage  as  is  allowed  for  the  ser- 
vice of  any  other  writ,  and  for  making  the  service,  seizing  or 
levying  on  property,  advertising  and  disposing  of  the  same  by 
sale,  set  off,  or  otherwise, -according  to  law  receiving  and  pay- 
ing over  the  money,  the  same  fees  and  poundage  as  are  or 
shall  be  allowed  for  similar  services  to  the  sheriffs  of  the  states, 
respectively,  in  which  the  service  is  rendered. 

"For  each  bail  bond,  fifty  cents. 

"For  summoning  appraisers,  fifty  cents  each. 

"For  executing  a  deed  prepared  by  a  party  or  his  attorney, 
one  dollar. 

"For  drawing  and  executing  a  deed,  five  dollars. 

"For  copies  of  writs  or  papers  furnished  at  the  request  of 
any  party,  ten  cents  a  folio. 

"For  every  proclamation  in  admiralty,  thirty  cents. 

"For  serving  an  attachment  in  rem  or  a  libel  in  admiralty, 
two  dollars. 

"For  the  necessary  expenses  of  keeping  boats,  vessels,  or 
other  property  attached  or  libeled  in  admiralty,  not  exceed- 
ing two  dollars  and  fifty  cents  a  day. 

"When  the  debt  or  claim  in  admiralty  is  settled  by  the 
parties  without  a  sale  of  the  property,  the  marshal  shall  be 
entitled  to  a  commission  of  one  per  centum  on  the  first  five 
hundred  dollars  of  the  claim  or  decree,  and  one-half  of  one 
per  centum  on  the  excess  of  any  sum  thereof  over  five  hun- 
dred dollars :  Provided,  That,  when  the  value  of  the  property 
is  less  than  the  claim,  such  commission  shall  be  allowed  only 
on  the  appraised  value  thereof. 

"For  sale  of  vessels  or  other  property  under  process  in 
admiralty,  or  under  the  order  of  a  court  of  admiralty,  and 
for  receiving  and  paying  over  the  money,  two  and  one-half 
per  centum  on  any  sum  under  five  hundred  dollars,  and  one 
and  one-quarter  per  centum  on  the  excess  of  any  sum  over 
five  hundred  dollars. 


§  413,  Ch.  14  MANUAL  OF  FEDERAL  PROCEDURE.  220 

"For  disbursing  money  to  jurors  and  witnesses,  and  for 
other  expenses,  two  per  centum. 

"For  expenses  while  employed  in  endeavoring  to  arrest, 
under  process,  any  person  .charged  with  or  convicted  of  a 
crime,  the  sum  actually  expended,  not  to  exceed  two  dollars  a 
day,  in  addition  to  his  compensation  for  service  and  travel. 

"For  every  commitment  or  discharge  of  a  prisoner,  fifty 
cents. 

"For  transporting  criminals,  ten  cents  a  mile  for  himself 
and  for  each  prisoner  and  necessary  guard;  except  in  the 
case  provided  for  in  the  next  paragraph. 

"For  transporting  criminals  convicted  of  a  crime  in  any 
district  or  territory  where  there  is  no  penitentiary  available 
for  the  confinement  of  convicts  of  the  United  States,  to  a 
prison  in  another  district  or  Territory  designated  by  the 
Attorney-General,  the  reasonable  actual  expense  of  trans- 
portation of  the  criminals,  the  marshal,  and  the  guards,  and 
the  necessary  subsistence  and  hire. 

"For  attending  the  circuit  and  district  courts,  when  both 
are  in  session,  or  either  of  them  when  only  one  is  in  session, 
and  for  bringing  in  and  committing  prisoners  and  witnesses 
during  the  term,  five  dollars  a  day. 

"For  attending  examinations  before  a  commissioner,  and 
bringing  in,  guarding,  and  returning  prisoners  charged  with 
crime,  and  witnesses,  two  dollars  a  day ;  and  for  each  deputy 
not  exceeding  two,  necessarily  attending,  two  dollars  a  day. 

"For  traveling  from  his  residence  to  the  place  of  holding 
court,  to  attend  a  term  thereof,  ten  cents  a  mile  for  going 
only. 

"For  travel,  in  going,  only,  to  serve  any  process,  warrant, 
attachment,  or  other  writ,  including  writs  of  subpoena  in 
civil  or  criminal  cases,  six  cents  a  mile,  to  be  computed  from 
the  place  where  the  process  is  returned  to  the  place  of  service, 
or,  when  more  than  one  person  is  served  therewith,  to  the 
place  of  service  which  is  most  remote,  adding  thereto  the 
extra  travel  which  is  necessary  to  serve  it  on  others.  But 
when  more  than  two  writs  of  any  kind  required  to  be  served 
in  behalf  of  the  same  party  on  the  same  person  might  be 
served  at  the  same  time,  the  marshal  shall  be  entitled  to  com- 
pensation for  travel  on  only  two  of  such  writs;  and  to  save 
unnecessary  expense,  it  shall  be  the  duty  of  the  clerk  to  in- 


221  COSTS  AND  FEES.  Ch.  14,  §§  414-415 

sert  the  names  of  as  many  witnesses  in  a  cause  in  such  sub- 
poena as  convenience  in  serving  the  same  will  permit. 

"In  all  cases  where  mileage  is  allowed  to  the  marshal  he 
may  elect  to  receive  the  same  or  his  actual  traveling  expenses, 
to  be  proved  on  his  oath,  to  the  satisfaction  of  the  court." 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  678;  2  U.  S.  Comp.  Stats.  1916, 
§  1386.) 

As  to  the  fees  and  compensation  of  marshals  in  Oregon,  Montana 
and  Washington,  see  Act  Aug.  1,  1914,  c.  223,  quoted  in  the  preced- 
ing section. 

§414.  Attorneys,  Clerks  and  Marshals'  Fees  Under  Civil 
Rights  Laws. 

§  1986,  Rev.  Stats.  "The  district  attorneys,  marshals,  their 
deputies,  and  the  clerks  of  the  courts  of  the  United  States 
and  territorial  courts,  shall  be  paid  for  their  services,  in  cases 
under  the  foregoing  provisions,  the  same  fees  as  are  allowed 
to  them  for  like  services  in  other  cases;  and  where  the  pro- 
ceedings are  before  a  commissioner  he  shall  be  entitled  to  a  fee 
of  ten  dollars  for  his  services  in  each  case,  inclusive  of  all 
services  incident  to  the  arrest  and  examination."  (2  Fed. 
Stats.  Ann.,  2d  ed.,  p.  135;  4  U.  S.  Comp.  Stats.  1916,  §  3940.) 

§  415.    Fees  of  United  States  Commissioners. 

Part  §21,  Act  May  28,  1896,  c.  252.  "That  each  United 
States  commissioner  shall  be  entitled  to  the  following  named 
fees,  and  none  other : 

"Drawing  a  complaint,  with  oath  and  jurat  to  same,  fifty 
cents. 

"Copy  of  complaint,  with  certificate  to  same,  thirty  cents. 

"Issuing  warrant  of  arrest,  seventy -five  cents. 

"Issuing  a  commitment  and  making  a  copy  of  same,  one 
dollar. 

"Entering  a  return,  fifteen  cents. 

"Issuing  subpoena  or  subpoenas  in  any  one  case,  with  five 
cents  for  each  necessary  witness  in  addition  to  the  first, 
twenty-five  cents. 

'  "Drawing  a  bond  of  defendant  and  sureties,  taking  ac- 
knowledgment of  same  and  justification  of  sureties,  seventy- 
five  cents. 


§  415,  Ch.  14  MANUAL  OF  FEDERAL  PROCEDURE.  222 

"For  administering  an  oath  (except  to  witness  as  to  at- 
tendance and  travel),  ten  cents. 

Recognizance  of  all  witnesses  in  a  case,  when  the  defendant 
or  defendants  are  held  for  court,  fifty  cents. 

"Transcripts  of  proceedings,  when  required  by  order  of 
court  and  transmission  of  original  papers  to  court,  sixty  cents. 

"Copy  of  warrant  of  arrest,  with  certificate  to  same,  when 
defendant  is  held  for  court,  and  the  original  papers  are  not 
sent  to  court,  forty  cents. 

"Order  in  duplicate  to  pay  all  witnesses  in  a  case:  For 
first  witness,  thirty  cents,  and  for  each  additional  witness, 
five  cents,  and  for  oath  to  each  witness  as  to  attendance  and 
travel,  five  cents. 

"For  hearing  and  deciding^  on  criminal  charges  and  re- 
ducing the  testimony  to  writing  when  required  by  law  or 
order  of  court,  five  dollars  a  day  for  the  time  necessarily 
employed. 

"Provided,  That  not  more  than  one  per  diem  shall  be  al- 
lowed in  a  case,  unless  the  account  shall  show  that  the  hear- 
ing could  not  be  completed  in  one  day,  when  one  additional 
per  diem  may  be  especially  approved  and  allowed  by  the  court. 

"Provided,  further,  That  not  more  than  one  per  diem  shall 
be  allowed  for  any  one  day. 

"Provided,  further,  That  no  per  diem  shall  be  allowed  for 
taking  a  bond  or  recognizance  and  passing  on  the  sufficiency 
of  the  bond  or  recognizance  and  the  sureties  thereon  when 
the  bond  or  recognizance  was  taken  after  the  defendant  had 
been  committed  to  prison  upon  a  final  commitment,  or  has 
given  bond  or  been  recognized  for  his  appearance  at  court,  or 
when  the  defendant  has  been  arrested  on  a  capias  or  bench 
warrant,  or  was  in  custody  under  any  process  or  order  of  a 
court  of  record. 

"For  the  examination  and  certificate  in  cases  of  applica- 
tion for  discharge  of  poor  convicts  imprisoned  for  nonpay- 
ment of  fine  or  fine  and  costs,  and.  all  services  connected  there- 
with, three  dollars. 

"For  attending  to  a  reference  in  a  litigated  matter,  in  a 
civil  cause  at  law,  in  equity,  or  in  admiralty,  in  pursuance  of 
an  order  of  the  court,  three  dollars  a  day. 

"For  taking  and  certifying  depositions  to  file  in  civil  cases, 
ten  cents  for  each  folio. 


223  COSTS  AND  FEES.  Ch.  M,  §§  416-41? 

"For  each  copy  of  the  same  furnished  to  a  party  on  re- 
quest, ten  cents  for  each  folio. 

"For  issuing  any  warrant  under  the  tenth  article  of  the 
treaty  of  August  9,  1842,  between  the  United  States  and  the 
Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
against  any  parties  charged  with  any  crime  or  offense  set  forth 
in  said  article,  two  dollars. 

"For  issuing  any  warrant  under  the  provision  of  the  con- 
vention for  the  surrender  of  criminals  between  the  United 
States  and  the  King  of  the  French,  concluded  at  Washington, 
November  9,  1843,  two  dollars. 

"For  hearing  and  deciding  upon  the  case  of  any  person 
charged  with  any  crime  or  offense,  and  arrested  under  the 
provisions  of  said  treaty  or  of  said  convention,  five  dollars 
a  day  for  the  time  necessarily  employed.  .  .  .  '  (29  £>tats. 
184;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  743;  2  U.  S.  Comp.  Stats. 
1916,  §  1451.) 

§  416.    Same — Under  Chinese  Exclusion  Laws. 

§  2,  Act  March  3,  1901,  c.  845.  "A  United  States  Commis- 
sioner shall  be  entitled  to  receive  a  fee  of  five  dollars  for  hear- 
ing and  deciding  a  case  arising  under  the  Chinese  Exclusion 
laws."  (31  Stats.  1093;  2  Fed.  Stats.  Ann.,  2d  ed.,  p.  108; 
5  U.  S.  Comp.  Stats.  1916,  §  4333.) 

§  417.    Costs  and  Witness  Fees  in  Extradition  Cases. 

§  4,  Act  Aug.  3,  1882,  c.  378.  ' '  That  all  witness  fees  and 
costs  of  every  nature  in  cases  of  extradition,  including  the 
fees  of  -the  commissioner,  shall  be  certified  by  the  judge  or 
commissioner  before  whom  the  hearing  shall  take  place  to 
the  Secretary  of  State  of  the  United"  States,  who  is  hereby 
authorized  to  allow  the  payment  thereof  out  of  the  appropria- 
tion to  defray  the  expenses  of  the  judiciary;  and  the  Secre- 
tary of  State  shall  cause  the  amount  of  said  fees  and  costs 
so  allowed  to  be  reimbursed  to  the  Government  of  the  United 
States  by  the  foreign  government  by  whom  the  proceedings 
for  extradition  may  have  been  instituted."  (22  Stats.  2K>; 
3  Fed.  Stats.  Ann.,  2d  ed.,  p.  313 ;  10  U.  S.  Comp.  Stats.  1916, 
§  10,115.) 


§  418,  Ch.  14  MANUAL  OF  FEDERAL  PROCEDURE.  224 

§  418.    Witnesses'  Fees. 

§848,  Rev.  Stats.  "For  each  day's  attendance  in  court, 
or  before  any  officer  pursuant  to  law,  one  dollar  and  fifty 
cents,  and  five  cents  a  mile  for  going  from  his  place  of  resi- 
dence to  the  place  of  trial  or  hearing,  and  five  cents  a  mile 
for  returning.  When  a  witness  is  subpoenaed  in  more  than 
one  cause  between  the  same  parties,  at  the  same  court,  only 
one  travel  fee  and  one  per  diem  compensation  shall  be  al- 
lowed for  attendance.  Both  shall  be  taxed  in  the  case  first 
disposed  of,  after  which  the  per  diem  attendance  fee  alone 
shall  be  taxed  in  the  other  cases  in  the  order  in  which  they 
are  disposed  of. 

"When  a  witness  is  detained  in  prison  for  want  of  security 
for  his  appearance,  he  shall  be  entitled,  in  addition  to  his 
subsistence,  to  a  compensation  of  one  dollar  a  day."  (Fed. 
Stats.  Ann.,  2d  ed.,  title  "Witnesses";  2  U.  S.  Comp.  Stats. 
1916,  §  1452.) 

§  1,  Act  May  27,  1908,  c.  200.  (Fees  and  mileage  of  jurors 
and  witnesses  in  certain  states  and  territories.)  "Jurors  and 
witnesses  in  the  United  States  courts  in  the  States  of  Wyoming, 
Montana,  Washington,  Oregon,  California,  Nevada,  Idaho, 
Colorado  and  Utah,  and  in  the  territories  of  New  Mexico  and 
Arizona  shall  be  entitled  to  receive  for  actual  attendance  at 
any  court  or  courts  and  for  the  time  necessarily  occupied  in 
going  to  and  returning  from  the  same,  three  dollars  a  day, 
and  fifteen  cents  for  each  mile  necessarily  traveled  over  any 
stage  line,  or  by  private  conveyance,  and  five  cents  for  each 
mile  by  any  railway  or  steamship  in  going  to  and  returning 
from  said  courts:  Provided  that  no  constructive  or  double 
mileage  fees  shall  be  allowed  by  reason  of  any  person  being 
summoned  as  both  a  witness  and  juror,  or  as  a  witness  in  two 
or  more  cases  pending  in  the  same  court  and  triable  at  the 
same  term  thereof. "  (35  Stats.  377 ;  6  Fed.  Stats.  Ann.,  2d  ed., 
p.  239;  2  U.  S.  Comp.  Stats.  1916,  §  1453,  p.  2339.) 

Witness  fees  in  extradition  cases  are  set  out,  §  417,  supra. 

Witnesses  before  the  Interstate  Commerce  Commission  are  en- 
titled to  the  same  fees  and  mileage  as  are  paid  to  witnesses  in 
the  federal  courts.  (Part  §  18,  Act  Feb.  4,  1887,  c,  104;  24  Stats. 


•2 Jo  COSTS  AND  FEES.  Ch.  14,  §S  419-422 

386;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  499;  8  U.  S.  Comp.  Stats.  1916, 
§  8587.) 

Other  matters  relating  to  witness  fees  are  in  the  following  sec- 
tions : 

§  419.    Court  Officer  not  Entitled  to  Witness  Fees. 

§  849,  Rev.  Stats.  ' '  No  officer  of  the  United  States  courts, 
in  any  state  or  territory,  or  in  the  District  of  Columbia,  shall 
be  entitled  to  witness  fees  for  attending  before  any  court  or 
commission  where  he  is  officiating."  (Fed.  Stats.  Ann.,  2d  ed., 
title  "Witnesses";  2  U.  S.  Comp.  Stats.  1916,  §  1454.) 

iioV 

§  420.    Witness  Fees  Depositions  in  District  of  Columbia. 

§574,  Rev.  Stats.  "Every  witness  appearing  and  testify- 
ing under  the  said  provisions  relating  to  the  District  of 
Columbia  shall  be  entitled  to  receive  for  each  day's  attendance, 
from  the  party  at  whose  instance  he  is  summoned,  the  fees 
now  provided  by  law  for  each  day  he  shall  give  attendance." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  196;  3  U.  S.  Comp.  Stats.  1916, 
§  1485.) 

§421.    Same  —  Under    Letters    Kogutory    from    a    Foreign 
Country. 

§  4074,  Rev.  Stats.  "Every  witness  who  shall  so  appear  and 
testify  shall  be  allowed,  and  shall  receive  from  the  party  at 
whose  instance  he  shall  have  been  summoned,  the  same  fees  and 
mileage  as  are  allowed  to  witnesses  in  suits  depending  in  the 
district  courts  of  the  United  States."  (3  Fed.  Stats.  Ann.,  2d 
ed.,  p.  224;  7  U.  S.  Comp.  Stats.  1916,  §  7622.) 

§  422.    Witness  Fees  of  Seamen. 

§  851,  Rev.  Stats.  "There  shall  be  paid  to  each  seaman  or 
other  person  who  is  sent  to  the  United  States  from  any  foreign 
port,  station,  sea,  or  ocean,  by  any  United  States  minister, 
charge  d'affaires,  consul,  captain,  or  commander,  to  give  tes- 
timony in  any  criminal  case  depending  in  any  court  of  the 
United  States,  such  compensation,  exclusive  of  subsistence 
and  transportation,  as  such  court  may  adjudge  to  be  proper, 

Manual — 15 


§§  423-424,  Ch.  14     MANUAL  OF  FEDERAL  PROCEDURE.  226 

not  exceeding  one-  dollar  for  each  day  necessarily  employed 
in  such  voyage,  and  in  arriving  at  the  place  of  examination  or 
trial.  In  fixing  such  compensation,  the  court  shall  take  into 
consideration  the  condition  of  said  seaman  or  witness,  and 
whether  his  voyage  has  been  broken  up,  to  his  injury,  by  his 
being  sent  to  the  United  States.  When  such  seaman  or  person 
is  transported  in  an  armed  vessel  of  the  United  States,  no 
charge  for  subsistence  or  transportation  shall  be  allowed. 
When  he  is  transported  in  any  other  vessel,  the  compensation 
for  his  transportation  and  subsistence,  not  exceeding  in  any 
case  fifty  cents  a  day,  may  be  fixed  by  the  court,  and  shall  be 
paid  to  the  captain  of  said  vessel  accordingly."  (Fed.  Stats. 
Ann.,  2d  ed.,  title  "Witnesses";  2  U.  S.  Comp.  Stats.  1916, 
§  1456.) 

§  1,  Act  July  1,  1916,  c.  209.  "That  courts  of  the  United 
States  shall  be  open  to  seamen,  without  furnishing  bonds  or 
prepayment  of  or  making  deposit  to  secure  fees  or  costs,  for 
the  purpose  of  entering  and  prosecuting  suit  or  suits  in  their 
own  name  and  for  their  own  benefit  for  wages  or  salvage  and 
to  enforce  laws  made  for  their  health  and  safety."  (Pamph- 
let Supp.,  Fed.  Stats.  Ann.,  No.  8,  p.  128;  3  U.  S.  Comp.  Stats. 
1916,  §  1630a,  p.  3240.) 

§423.    United  States  Liable  for  Only  Four  Witness  Fees  on 
Preliminary  Criminal  Examination. 

§  981,  Rev.  Stats.  "In  no  case  shall  the  fees  of  more  than 
four  witnesses  be  taxed  against  the  United  States,  in  the  exam- 
ination of  any  criminal  case  before  a  commissioner  of  a  cir- 
cuit court,  unless  their  materiality  and  importance  are  firs* 
approved  and  certified  to  by  the  district  attorney  for  the  dis- 
trict in  which  the  examination  is  had ;  and  such  taxation  shall 
be  subject  to  revision  as  in  other  cases."  (2  Fed.  Stats.  Ann., 
2d  ed.,  p.  643 ;  3  U.  S.  Comp.  Stats.  1916,  §  1622.) 

§  424.    Witness  Fees  in  Prize  Cases — How  Paid. 

§  4651,  Rev.  Stats.  "Whenever  the  court  shall  allow  fees 
to  any  witness  in  a  prize  cause,  or  fees  for  taking  evidence  out 
of  the  district  in  which  the  court  sits,  and  there  is  no  money 
subject  to  its  order  in  the  cause,  the  same  shall  be  paid  by  the 


227  COSTS  AND  FEES.  Ch.  14,  §§  425-427 

marshal,  and  shall  be  repaid  to  him  from  any  money  deposited 
to  the  order  of  the  court  in  the  cause ;  and  any  amount  not  so 
repaid  the  marshal  shall  be  allowed  as  witness  fees  paid  by 
him  in  cases  in  which  the  United  States  is  a  party."  (Fed. 
Stats.  Ann.,  2d  ed.,  title  "Prizes";  7  U.  S.  Comp.  Stats.  1916, 
§8425.) 

See,  also,  §  426,  infra,  as  to  mode  of  payment  of  witness  and 
juror  fees. 

§  425.    Juror  Fees — Grand  and  Petit. 

§  852,  Rev.  Stats.  "For  actual  attendance  at  any  court  or 
courts,  and  for  the  time  necessarily  occupied  in  going  to  and 
returning  from  the  same,  three  dollars  a  day  during  such  at- 
tendance. For  the  distance  necessarily  traveled  from  their 
residence  in  going  to  and  returning  from  said  court  by  the 
•  shortest  practicable  route  five  cents  a  mile."  (6  Fed.  Stats. 
Ann.,  2d  ed.,  title  "Juries";  2  U.  S.  Comp.  Stats.  1916,  §  1457.) 

§  426.    Mode  of  Payment  Juror  and  Witness  Fees. 

§  855,  Rev.  Stats.  ' '  In  cases  where  the  United  States  are 
parties,  the  marshal  shall,  on  the  order  of  the  court,  to  be  en- 
tered on  its  minutes,  pay  to  the  jurors  and  witnesses  all  fees 
to  which  they  appear  by  such  order  to  be  entitled,  which  sum 
shall  be  allowed  him  at  the  Treasury  in  his  accounts."  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  709;  2  U.  S.  Comp.  Stats.  1916,  §  1461.) 

§427.     Printer's  Fees. 

§  853,  Rev.  Stats.  "For  publishing  any  notice  or  order  re- 
quired by  law,  or  the  lawful  order  of  any  court,  Department, 
Bureau,  or  other  person,  in  any  newspaper,  except  as  men- 
tioned in  sections  3823,  3824  and  3825,  title  'Public  Printing, 
Advertisements,  and  Public  Documents,'  forty  cents  per  folio 
for  the  first  insertion,  and  twenty  cents  per  folio  for  each 
subsequent  insertion.  The  compensation  herein  provided  shall 
include  the  furnishing  of  lawful  evidence,  under  oath,  of  pub- 
lication, to  be  made  and  furnished  by  the  printer  or  publisher 
making  such  publication."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p. 
635;  2  U.  S.  Comp.  Stats.  1916,  §  1459.) 


§§  428-431,  Ch.  14     MANUAL  OP  FEDERAL  PROCEDURE.  228 

§  428.    Same— Folio  Defined. 

§854,  Rev.  Stats.  "The  term. 'folio'  in  this  chapter  shall 
mean  one  hundred  words,  counting  each  figure  as  a  word. 
When  there  are  over  fifty  and  under  one  hundred  words,  they 
shall  be  counted  as  one  folio;  but  a  less  number  than  fifty 
words  shall  not  be  counted,  except  when  the  whole  statute, 
notice,  or  order  contains  less  than  fifty  words."  (2  Fed. 
Stats.  Ann.,  2d  ed.,  p.  636;  2  U.  S.  Comp.  Stats.  1916,  §  1460.) 

§  429.    Appraiser's  Fees  on  Execution  Sales. 

Last  Part  §  993,  Rev.  Stats.  "  .  .  .  When  such  appraisers 
attend  they  shall  be  entitled  to  the  like  fees  as  in  cases  of 
appraisement  under  the  laws  of  the  State."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  239;  3  U.  S.  Comp.  Stats.  1916,  §  1639.) 

§430.    No  Costs  Against  United  States  in  Internal  Revenue 
Suits  upon  Information. 

§  969,  Rev.  Stats.  "When  a  suit  for  the  recovery  of  any 
penalty  or  forfeiture  accruing  under  any  law  providing  in- 
ternal revenue  is  brought  upon  information  received  from  any 
person  other  than  a  collector,  deputy  collector,  or  inspector  of 
internal  revenue,  the  United  States  shall  not  be  subject  to  any 
costs  of  suit."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  638;  3  U.  S. 
Comp.  Stats.  1916,  §  1610.) 

§  431.    No  Costs  Against  Prosecutor  nor  for  Claimant  When 
Reasonable  Cause  for  Seizure. 

§970,  Rev.  Stats.  "(Claimant  not  entitled  to  costs  when 
reasonable  cause  of  seizure.)  When,  in  any  prosecution  com- 
menced on  account  of  the  seizure  of  any  vessel,  goods,  wares, 
or  merchandise,  made  by  any  collector  or  other  officer,  under 
any  act  of  Congress  authorizing  such  seizure,  judgment  is  ren- 
dered for  the  claimant,  but  it  appears  to  the  court  that  there 
was  reasonable  cause  of  seizure,  the  court  shall  cause  a  proper 
certificate  thereof  to  be  entered,  and  the  claimant  shall  not,  in 
such  case,  be  entitled  to  costs,  nor  shall  the  person  who  made 
the  seizure,  nor  the  prosecutor,  be  liable  to  suit  or  judgment  on 
account  of  such  suit  or  prosecution :  Provided,  That  the  vessel, 


229  COSTS  AND  FEES.  Ch.  14,  §§  432-435 

goods,  wares,  or  merchandise  be,  after  judgment,  forthwith 
returned  to  such  claimant  or  his  agent."  (2  Fed.  Stats.  Ann., 
2d  ed.,  p.  638;  3  U.  S.  Comp.  Stats.  1916,  §  1611.) 

§  432.     Successful  Claimant  Entitled  to  Possession  When  His 
Own  Costs  Paid. 

§  979,  Rev.  Stats.  "When  judgment  is  rendered  in  favor  of 
the  claimant  of  any  vessel  or  other  property  seized  on  behalf 
of  the  United  States,  and  libeled  or  informed  against  as  for- 
feited under  any  law  thereof,  he  shall  be  entitled  to  possession 
of  the  same  when  his  own  costs  are  paid."  (2  Fed.  Stats. 
Ann.,  2d  ed.,  p.  643;  3  U.  S.  Comp.  Stats.  1916,  §  1620.) 

§  433.    Double  Costs  Against  Nonsuited  Plaintiff  in  Action 
Against  Revenue  Officer. 

§  971,  Rev.  Stats.  "If,  in  any  suit  against  an  officer  or  other 
person  executing  or  aiding  or  assisting  in  the  seizure  of  goods, 
under  any  act  providing  for  or  regulating  the  collection  of 
duties  on  imports  or  tonnage,  the  plaintiff  is  nonsuited,  or  judg- 
ment passed  against  him,  the  defendant  shall  recover  double 
costs."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  640;  3  U.  S.  Comp. 
Stats.  1916,  §  1612.) 

§  434.    Defendant  Subjected  to  Fine,  Forfeiture  or  Conviction 
shall  Pay  Costs  of  Prosecution. 

§  974,  Rev.  Stats.  "  (When  costs  of  prosecution  to  be  paid 
by  defendant.)  When  judgment  is  rendered  against  the  de- 
fendant in  a  prosecution  for  any  fine  or  forfeiture  incurred 
under  a  statute  of  the  United  States,  he  shall  be  subject  to  the 
payment  of  costs;  and" on  every  conviction  for  any  other  offense 
not  capital,  the  court  may,  in  its  discretion,  award  that  the 
defendant  shall  pay  the  costs  of  the  prosecution."  (2  Fed. 
Stats.  Ann.,  2d  ed.,  p.  641;  3  U.  S.  Comp.  Stats.  1916,  §  1615.) 

§  435.    Defendant  to  be  Awarded  Costs  if  Informer  on  Penal 
Statute  Nonsuited  or  Discontinues. 

§  975,  Rev.  Stats.  "If  any  informer  or  plaintiff  on  a  penal 
statute,  to  whom  the  penalty  or  any  part  thereof,  if  recovered. 


§§  436-438,  Ch.  14    MANUAL  OF  FEDERAL  PROCEDURE. 

is  directed  to  accrue,  discontinues  his  suit  or  prosecution  or 
is  nonsuited  therein,  or  if,  upon  trial,  judgment  is  rendered  in 
favor  of  the  defendant,  the  court  shall  award  the  defendant 
his  costs,  unless  such  informer  or  plaintiff  is  an  officer  of  the 
United  States  specially  authorized  to  commence  such  prosecu- 
tion, and  the  court,  at  the  trial  in  open  court,  certifies  upon 
the  record  that  there  was  a  reasonable  cause  for  commencing 
the  same;  in  which  case  no  costs  shall  be  adjudged  to  the  de- 
fendant." (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  642;  3  U.  S.  Comp. 
Stats.  1916,  §  1616.) 

§  436.    Informer  on  Penal  Statute  to  Pay  Costs  if  Nonsuit  or 
Discontinuance. 

§  976,  Rev.  Stats.  "If  any  informer  on  a  penal  statute,  to 
whom  the  penalty  or  any  part  thereof,  if  recovered,  is  directed 
to  accrue,  discontinues  his  suit  or  prosecution,  or  is  nonsuited 
therein,  or  if  upon  trial  judgment  is  rendered  in  favor  of  the 
defendant,  such  informer  shall  be  alone  liable  to  the  clerk, 
marshal,  and  attorney  for  the  fees  of  such  prosecution,  unless 
he  is  an  officer  of  the  United  States  whose  duty  it  is  to  com- 
mence such  prosecution,  and  the  court  certifies  that  there  was 
reasonable  cause  for  commencing  the 'same;  in  which  case  the 
United  States  shall  be  responsible  for  such  fees."  (2  Fed. 
Stats.  Ann.,  2d  ed.,  p.  642 ;  3  U.  S.  Comp.  Stats.  1916,  §  1617.) 

§  437.     Costs  in  Copyright  Suits. 

§  972,  Rev.  Stats.  "In  all  recoveries  under  the  copyright 
laws,  either  for  damages,  forfeitures,  or  penalties,  full  costs 
shall  be  allowed  thereon."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  640; 
3  U.  S.  Comp.  Stats.  1916,  §  1613.) 

§  40,  Act  March  4,  1909,  c.  320.  ."That  in  all  actions,  suits, 
or  proceedings  under  this  act,  except  when  brought  by  or 
against  the  United  States  or  any  officer  thereof,  full  costs  shall 
be  allowed,  and  the  court  may  award  to  the  prevailing  party  a 
reasonable  attorney's  fee  as  part  of  the  costs."  (35  Stats. 
1084 ;  2  Fed.  State.  Ann.,  2d  ed.,  p.  608 ;  9  U.  S.  Comp.  Stats. 
1916,  §  9562.) 

§  438.     Costs  on  Infringement  of  Patent. 

§973,  Rev.  Stats.  "When  judgment  or  decree  is  rendered 
for  the  plaintiff  or  complainant,  in  any  suit  at  law  or  in  equity. 


231  COSTS  AND  FEES.  Oh.  14,  §  438 

for  the  infringement  of  a  part  of  a  patentrin  which  it  appears 
that  the  patentee,  in  his  specification,  claimed  to  be  the  origi- 
nal and  first  inventor  or  discoverer  of  any  material  or  substan- 
tial part  of  the  thing  patented,  of  which  he-was  not  the' original 
and  first  inventor,  no  costs  shall  be  recovered,  unless  the  proper 
disclaimer,  as  provided  by  the  patent  laws,  has  been  entered  at 
the  Patent  Office  before  the  suit  was  brought."  (2  Fed.  Stats. 
Ann.,  2d  ed.,  p.  640;  3  U.  S.  Comp.  Stats.  1916,  §  1614.) 

§  4922,  Rev.  Stats.  "Whenever,  through  inadvertence,  acci- 
dent, or  mistake,  and  without  any  wilful  default  or  intent  to 
defraud  or  mislead  the  public,  a  patentee  has,  in  his  specifica- 
tion, claimed  to  be  the  original  and  first  inventor  or  discoverer 
of  any  material  or  substantial  part  of  the  thing  patented,  of 
which  he  was  not  the  original  and  first  inventor  or  discoverer, 
every  such  patentee,  his  executors,  administrators,  and  assigns, 
whether  of  the  whole  or  any  sectional  interest  in  the  patent, 
may  maintain  a  suit  at  law  or  in  equity,  for  the  infringement 
of  any  part  thereof,  which  was  bona  fide  his  own,  if  it  is  a 
material  and  substantial  part  of  the  thing  patented,  and  defi- 
nitely distinguishable  from  the  parts  claimed  without  right, 
notwithstanding  the  specifications  may  embrace  more  than  that 
of  which  the  patentee  was  the  first  inventor  or  discoverer.  But 
in  every  such  case  in  which  a  judgment  or  decree  shall  be  ren- 
dered for  the  plaintiff  no  costs  shall  be  recovered  unless  the 
proper  disclaimer  has  been  entered  at  the  Patent  Office  before 
the  commencement  of  the  suit.  But  no  patentee  shall  be  en- 
titled to  the  benefits  of  this  section  if  he  has  unreasonably  neg- 
lected or  delayed  to  enter  a  disclaimer."  (Fed.  Stats.  Ann., 
2d  ed.,  title  "Patents";  8  U.  S.  Comp.  Stats.  1916,  §  9468.) 


§  150,  Ch.  15  MANUAL  OF  FEDERAL  PROCEDURE.  232 


CHAPTER  15. 

AN  ACTION  AT  LAW— SUMMARY. 

SEO. 

450.  In  General. 

451.  Initial  Pleading. 

452.  Attachment  and  Garnishment. 

453.  Process. 

454.  Defensive  Pleading. 

455.  Amendment. 

456.  Continuances  and  Adjournments. 

457.  Consolidation. 

458.  Trial  by  Jury. 

459.  Trial  by  Judge. 

460.  Depositions,  Evidence,  Witnesses. 

461.  Charge  to  Jury  and  Verdict. 

462.  Judgment  and  New  Trial. 

463.  Execution. 

§  450.    In  General 

§  914,  Rev.  Stats.  "The  practice,  pleadings,  and  forms  and 
modes  of  proceeding  in  civil  causes,  other  than  equity  and  ad- 
miralty causes,  in  the  [circuit  and]  district  courts,  shall  con- 
form, as  near  as  may  be,  to  the  practice,  pleadings,  and  forms 
and  modes  of  proceeding  existing  at  the  time  in  like  causes  m 
the  courts  of  record  of  the  state  within  which  such  [circuit  or] 
district  courts  are  held,  any  rule  of  court  to  the  contrary  not 
withstanding."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  21;  3  U.  S. 
Comp.  Stats.  1916,  §  2912  et  seq.) 

§  918,  Rev.  Stats.  "The  several  [circuit  and]  district  courts 
may,  from  time  to  time,  and  in  any  manner  not  inconsistent 
with  any  law  of  the  United  States,  or  with  any  rule  prescribed 
by  the  Supreme  Court  under  the  preceding  section,  make  rules 
and  orders  directing  the  returning  of  writs  and  processes,  the 
filing  of  pleadings,  the  taking  of  rules,  the  entering  and  mak- 
ing up  of  judgments  by  default,  and  other  matters  in  vacation, 
and  otherwise  regulate  their  own  practice  as  may  be  necessary 
or  convenient  for  the  advancement  of  justice  and  the  preven- 
tion of  delays  in  proceedings."  (6  Fed.  Stats.  Ann.,  2d  ed., 
p.  77 ;  3  U.  S.  Comp.  Stats.  1916,  §  1544,  p.  3095  et  seq.) 


233  AN  ACTION  AT  LAW — SUMMARY.      Ch.  15,  §§  451-452 

Under  the  foregoing  provisions,  an  action  at  law  conforms  in 
many  particulars  to  a  similar  action  in  the  state  courts  of  record 
of  the  state  wherein  the  federal  district  is  located.  But  there  are 
a  number  of  federal  statutes  that  exist  governing  matters  of  pro- 
cedure which  prevent  a  complete  uniformity  with  the  practice  in 
the  several  states.  There  are  other  matters  concerning  which  the 
federal  judges,  in  the  exercise  of  their  discretion,  have  refused  to 
follow  the  state  rules  or  laws. 

The  object  of  this  chapter  is  to  summarize  the  conduct  of  an  ac- 
tion at  law  with  reference  to  conformity  with  state  laws. 

§  451.  Initial  Pleading.  (Chapter  16,  post.}  The  initial  plead- 
ing conforms  as  to  form  and  sufficiency  except  that  it  is  necessary 
to  show  (1)  ground  of  federal  jurisdiction,  (2)  ground  of  legal 
jurisdiction,  that  the  causes  of  action  are  legal  as  distinguished 
from  equitable,  and  legal  and  equitable  causes  are  not  permitted  to 
be  joined  in  the  same  petition,  (3)  the  requisite  amount  in  contro- 
versy, and  (4)  that  venue  is  properly  laid.  (See  §§  470.  474,  infra.) 

As  to  parties  under  subdivision  first,  §  24,  Jud.  Code,  assignees 
may  not  sue  except  when  the  assignor  or  assignors  could  have  sued 
in  the  federal  court.  (See  §  97,  infra.) 

Joinder  of  parties  is  governed  by  §  50,  Jud.  Code.  Survival  of 
right  of  action  in  the  executor  or  administrator  is  governed  by  §  55, 
Jud.  Code.  In  other  respects  rules  of  state  courts  as  to  parties 
will  govern  as  in  case  of  suits  by  assignees,  assigning  causes  of  ac- 
tion for  torts,  executors  and  administrators,  misjoinder  of  plain- 
tiffs or  defendants  and  right  of  action  for  death. 

§452.  Attachment  and  Garnishment.  (Chapter  17,  post.) 
The  remedies  of  attachment  and  garnishment  are  given  in  conform- 
ity to  state  laws  under  §  915,  Rev.  Stats.,  except  as  against  national 
banks  under  §  5242,  Rev.  Stats.  (See  §  480,  infra.) 

It  is  presumed  that  the  federal  courts  have  adopted  the  state 
laws  on  this  subject,  and  they  follow  the  state  courts'  construction 
of  state  attachment  statutes.  (See  §  482,  infra.) 


§  453,  Cll.  15  MANUAL  OP  FEDERAL  PROCEDURE.  234 

But  attachment  cannot  be  made  a  basis  of  jurisdiction  so  as  to 
authorize  service  by  publication.  The  federal  courts  do  not  follow 
state  practice  in  jurisdictional  matters.  (See  §  483,  infra.) 

The  state  statutes  are  followed  as  to  causes  of  action  in  which 
attachments  will  issue,  the  property  subject  to  attachment,  the 
grounds  for  attachment  to  be  stated  in  the  affidavit,  the  bonds  given 
to  obtain  or  release,  the  form  of  writ,  the  effect  of  lien,  priorities, 
third-party  claims,  and  under  §  933,  Rev.  Stats.,  the  dissolution  of 
the  attachment.  (See  §  494,  infra.) 

But  state  laws  are  not  followed  as  to  amendments  of  the  affidavit 
or  the  writ,  amendments  being  governed  by  §  948,  Rev.  Stats.,  for 
amending  process.  (See  §  487,  infra.) 

In  like  manner,  state  laws  are  followed  in  garnishment  proceed- 
ings under  §  915,  Rev.  Stats.,  relating  to  attachments  and  §  916, 
Rev.  Stats.,  relating  to  executions,  but  not  as  to  amendments  under 
§  948,  Rev.  Stats.,  relating  to  amendment  process  and  §  954,  Rev. 
Stats.,  relating  to  amendments  generally. 

There  are  special  provisions  as  to  attachments  in  postal  suits  and 
garnishments  in  suits  by  the  government  against  corporations. 

§453.  Process.  (Chapter  18,  post.)  The  time  when  suit 
begins  follows  state  law;  so  also  the  state  statute  of  limitations. 
(§  521,  infra.) 

The  form  and  body  of  process  follows  the  state  practice,  but  the 
signature,  seal  and  test  are  governed  by  §§  911,  912,  Rev.  Stats., 
and  amendment  of,  by  §§  948,  954,  Rev.  Stats.,  and  the  sufficiency 
of  process  and  service  are  governed  by  federal  decisions.  (§§  522- 
523,  infra.) 

The  marshal  or  his  deputy  serve  the  process  as  required  by  §§  787, 
788,  Rev.  Stats.  But  the  method  of  personal  service  follows  state 
practice,  although  substituted  service  is  governed  by  §  57,  Jud. 
Code. 

The  federal  decisions  govern  special  appearance.  (§§  524-526. 
infra.) 

§  262,  Jud.  Code,  allows  other  writs  not  provided  by  statute, 


235  AN  ACTION  AT  LAW — SUMMARY.      Cll.  15,  §§  454     15 

§  454.  Defensive  Pleading.  (Chapter  19,  post.)  The  time  and 
order  of  pleading  follow  state  practice.  Defaults  may  conform  to 
state  law  under  §  918,  Rev.  Stats.  (§  542,  infra.)  So  do  also  the 
sufficiency  and  scope  of  the  pleading.  Pleas  in  abatement,  de- 
murrers, answers,  setoffs,  or  counterclaims  and  replications,  when 
provided  by  state  practice,  will  be  used  in  like  cases  in  the  fed- 
eral courts.  State  rules  as  to  verification  are  followed.  (§§  541, 
543,  544,  infra.) 

Under  §  274b,  Jud.  Code,  added  by  amendment  Act  March, 

3,  1915,  chapter  90,  equitable  defenses  are  now  permitted  in 

an  action  at  law.     (§  545,  post.) 

§  455.  Amendment.  Amendment  of  pleading  is  .covered  by 
§  954,  Rev.  Stats.  (§  546,  infra.) 

Amendment  of  process  by  the  same  section  and  also  §  948,  Rev. 
Stats.  (§  523,  infra.) 

§456.  Continuances  and  Adjournments.  (Chapter  20,  post.) 
Continuances  conform  to  state  practice  except  as  modified  by  §§  955 
and  956,  Rev.  Stats.,  on  the  death  of  a  party ;  §  957,  Rev.  Stats.,  in 
suits  against  a  delinquent  for  public  money;  §  958,  Rev.  Stats.,  in 
postal  suits;  §  959,  Rev.  Stats.,  suits  on  debentures;  and  §  9GO,  Rev. 
Stats.,  suits  under  tariff  laws.  (§§•  561-566,  infra.)  There  are 
also  provisions  for  adjournments  when  the  judge  is  unable  to  act, 
§  12,  Jud.  Code,  or  his  office  becomes  vacant,  under  §  22,  Jud.  Code, 
and  for  concluding  in  a  new  term  trials  already  commenced,  under 
§  8,  Jud.  Code. 

§  457.  Consolidation.  Consolidation  of  suits  under  §  921,  Rev. 
Stats.,  conforms  to  state  practice.  §  920,  Rev.  Stats.,  provides  for 
consolidation  for  revenue  seizure  case.  (§  570,  infra.) 

§458.  Trial  by  Jury.  (Chapter  22,  post)  The  right  of  trial 
by  jury  is  guaranteed  by  the  seventh  Amendment  of  the  United 
States  Constitution,  and  is  provided  for  by  §  566,  Rev.  Stats. 


§§  459-460,  Ch.  15     MANUAL  OF  FEDERAL  PROCEDURE.  236 

Chapter  "12,  Jud.  Code,  as  to  juries,  sets  out  the  provisions  gov- 
erning the  qualifications  and  exemptions  of  jurors,  the  matters  of 
impaneling,  venire,  talesmen,  special  jury,  challenges,  etc.  The 
conduct  of  a  jury  trial,  being  a  matter  of  personal  administration 
of  the  judge,  does  not  conform  to  state  laws.  Thus,  there  is  not  a 
conformity  with  respect  to  the  scintilla  of  evidence  rule,  nor  with 
respect  to  withdrawing  case  from  the  jury  or  permitting  the  jury 
to  separate  or  submitting  special  issues  or  waiving  jury. 

§  459.  Trial  by  Judge.  (§  594,  post.)  By  §  291,  Jud.  Code, 
the  powers  and  duties  of  circuit  courts  are  imposed  upon  district 
courts,  and  hence  under  §§  649  and  700,  Rev.  Stats.,  the  district 
judge  would  have  authority  to  try  questions  of  fact  on  waiver  of 
jury.  The  admission  and  exclusion  of  evidence  can  only  be  con- 
sidered when  excepted  to  at  the  time  and  duly  presented  by  bill  of 
exceptions  under  §  700,  Rev.  Stats.  The  findings  of  fact  by  the 
judge  are  equivalent  to  verdict  by  the  jury  under  §§  649,  700,  1011, 
Rev.  Stats. 

§460.  Depositions  (chapter  13,  supra).  Evidence  (chapter 
11,  supra),  Witnesses  (chapter  12,  supra).  The  causes  for  tak- 
ing depositions  are  set  out  in  §§  863  and  866,  Rev.  Stats.,  and  the 
methods  of  taking  same  are  provided  for  in  §§  863  to  870,  Rev. 
Stats.,  inclusive,  but  may  be  in  the  same  manner  though  not  for 
the  same  cause  as  provided  in  the  state  practice,  under  Act  March 
9,  1892,  chapter  14. 

There  are  many  statutory  provisions  relating  to  special  matters 
of  evidence,  permitting  copies  of  documents  of  departments,  the 
record  and  exemplification  of  books  kept  by  public  officers  of  a  state 
or  territory,  copies  of  foreign  records,  evidence  of  acts  of  state 
legislatures,  and  records  of  judicial  proceedings.  This  subject  is 
treated  in  chapter  11. 

Tlie  competence  of  witnesses  conforms  under  §  858,  Rev.  Stats. 
State  laws  are  followed  as  to  credibility.  The  examination  and 
cross-examination  of  witnesses  conform  to  state  practice  under 


237  AN  ACTION  AT  LAW — SUMMARY.       Ch.  15,  §§  461-462 

§  861,  Rev.  Stats.,  but  not  as  to  the  examination  of  a  party  before 
trial.     See  §  724,  Rev.  Stats.,  §  571,  post. 

Subpoenas  for  witnesses  are  authorized  under  §§876  and  877^ 
Rev.  Stats.,  and  in  contested  patent  cases  under  §  4906,  Rev.  Stats., 
and  their  attendance  is  enforced  under  §  268,  Jud.  Code;  so,  also, 
the  answers  of  witnesses  may  be  enforced  under  §  268,  Jud.  Code, 
and  in  contested  patent  cases  under  §  4908,  Rev.  Stats.    The  pro- 
duction of  books  is  provided  for  in  §  724,  Rev.  Stats.,  and  subpoena 
duces  tecum  under  §§  724  and  869,  Rev.  Stats.    The  materiality  of 
evidence  and  the  effect  of  withdrawing  erroneously  admitted  evi- 
dence are  governed  by  federal  decisions.    The  subject  of  witnesses  is   , 
treated  in  detail,  chapter  12,  supra. 

§  461.  Charge  to  Jury  and  Verdict.  The  charge  to  the  jury 
is  also  a  matter  of  personal  administration  of  the  judge,  and  is 
governed  by  the  federal  decisions.  Thus  state  laws  forbidding 
comments  on  evidence  are  not  followed.  Section  918,  Rev.  Stats., 
governs  the  giving  of  special  charges.  Exceptions  to  charges  are 
governed  by  Circuit  Courts  of  Appeal  Rule  10  (Appendix,  post) 
and  Supreme  Court  Rule  4  (Appendix,  post).  (§  615,  post.)  The 
form  and  effect  of  a  verdict  conform  to  state  practice,  but  the  di- 
recting of  a  verdict  is  governed  by  the  federal  decisions.  (§  611, 
infra.) 

§462.  Judgment  and  New  Trial  (chapter  24,  post).  Judg- 
ments in  law  actions  may  conform  by  general  rule  to  state  laws 
under  §  914,  Rev.  Stats.,  as  to  allowance  of  interest  by  $  966,  Rev. 
Stats.  (§  623,  post),  recording,  docketing,  and  indexing  under  the 
Act  of  August  1,  1888,  chapter  729  (§§  625,  626,  627,  post).  The 
manner,  effect,  and  extent  of  the  lien  or  judgments  conform  under 
the  last-mentioned  act,  and  when  they  cease  to  be  liens  under  §  967, 
Rev.  Stats.  (§  627,  post),  and  the  lien  is  preserved  on  change  of 
boundaries  by  §  60,  Jud.  Code  (§628,  post).  Judgments  by  de- 
fault are  authorized  by  §  918,  Rev.  Stats.  (§542,  post).  Amend- 
ment of  judgments  is  governed  by  §  954,  Rev.  Stats.  (§  629,  post), 


§  463,  Ch.  15  MANUAL,  OP  FEDERAL  PROCEDURE.  238 

and  vacation  of  judgments  is  governed  by  Federal  decisions  (§  630, 
post).    New  trials  are  governed  by  §  269,  Jud.  Code  (§  613,  post). 

§463.  Execution  (§621,  post).  Executions  on  judgments  in 
law  actions  may  conform  by  general  rule  to  state  statutes  under 
§916,  Rev.  Stats.  (§  631,  post),  but  do  not  run  against  revenue 
officers  for  moneys  paid  on  probable  cause  into  the  treasury,  under 
§  989,  Rev.  Stats.  (§  632,  post). 

Stay  of  execution  pending  motion  for  new  trial  is  governed  by 
§  987,  Rev.  Stats.  (§  633,  post),  and  there  is  partial  conformity  to 
state  law  under  §  988,  Rev.  Stats.  (§  634,  post),  allowing  a  stay  for 
one  term. 

Executions  run  to  any  part  of  the  state  under  §  985,  Rev.  Stats. 
(§  635,  post),  and  on  judgments  in  favor  of  the  United  States  to 
any  part  of  the  United  States,  under  §  986,  Rev.  Stats.  (§635, 
post). 

Place  of  sale  of  real  and  personal  property  is  governed  by 
§§  1  and  2,  Act  March  3,  1893,  chapter  225  (§  640,  post). 

Publication  of  notice  of  sale  of  real  estate  by  §  3  (§  641,  post)  of 
the  same  act  and  proceedings  are  not  interrupted  by  vacancy  in  the 
marshal's  office,  under  §  994,  Rev.  Stats.  (§642,  post).  The  gov- 
ernment may  be  a  purchaser  in  its  own  suits  under  §  3470,  Rev. 
State.  (§643,  post). 

Appraisal  of  personal  property  sold  on  execution  may  conform  to 
state  laws  under  §  993,  Rev.  Stats.  (§  644,  post). 

State  laws  may  be  followed  regarding  abolishment  of  imprison- 
ment for  debt  under  §  990,  Rev.  Stats.  (§  636,  post),  and  for  the 
discharge  of  a  person  from  arrest  or  imprisonment  in  civil  cases 
under  §  991,  Rev.  Stats.  (§  637,  post).  In  government  cases  a  poor 
debtor  may  be  discharged  from  imprisonment  by  the  Secretary  of 
the  Treasury  under  §  3471,  Rev.  Stats.  (§  638,  post),  or  by  the 
President  under  §  3472,  Rev.  Stats.  (§  639,  post). 


239  TEE  INITIAL  PLEADING — LAW  ACTIONS.      Oh.  16,  §  470 


CHAPTER  16. 

THE  INITIAL  PLEADING— LAW  ACTIONS. 

BEO. 

470.  Differences  Between  Federal  and  State  Initial  Pleadings. 

471.  Effect  of  Failure  to  Show  Jurisdiction^  Grounds. 

472.  Effect  of  Erroneously  Beginning  as  a  Suit  in  Equity. 

473.  Legal  and  Equitable  Causes  of  Action  may  not  be  Joined. 

474.  Form  of  Initial  Pleading. 

§470.  Differences  Between  Federal  and  State  Initial  Plead- 
ings. Under  §  914,  Rev.  Stats.,  the  initial  pleading  in  actions  at 
law  as  distinguished  from  suits  in  equity  conforms  "as  near  as  may 
be"  to  the  pleadings  and  forms  existing  at  the  time  in  like  causes 
in  the  courts  of  record  of  the  state  witliin  which  the  federal  courts 
are  held.  • 

Because,  however,  of  the  limited  jurisdiction  of  the  federal  courts 
and  the  distinction  that  exists  in  such  courts  between  law  and  equity 
cases  in  respect  to  practice,  pleading,  forms  and  mode  of  proceed- 
ing, it  is  necessary  for  the  initial  pleading  in  an  action  at  law  in 
the  federal  court  to  disclose,  in  addition  to  those  matters  required 
to  make  a  good  pleading  in  the  state  court  of  record  of  the  state 
within  which  the  federal  court  is  held:  (1)  Some  ground  of  fed- 
eral jurisdiction,  (2)  the  proper  amount  in  controversy,  (3)  facts 
showing  that  the  cause  of  action  is  legal  in  its  nature  as  dis- 
tinguished from  equitable,  (4)  proper  venue  under  federal  laws. 

In  other  respects  the  initial  pleading,  a  petition,  declaration,  or 
complaint,  in  an  action  at  law  in  the  federal  court,  is  governed  by 
the  state  statutes  and  rules  in  like  causes  in  the  courts  of  record 
of  the  state  in  which  the  federal  court  is  located.1  There  should 

i  Beers  v.  Haughton.  9  Pet.  (U.  S.)  359,  9  L.  Ed.  155;  Ex  parte  Boyd, 
105  U.  S.  647,  26  L.  Ed.  1200;  Indianapolis  etc.  B.  Co.  v.  Horst,  93  U.  S. 
300,  23  L.  Ed.  901;  United  States  Bank  v.  Halstcad,  10  Wheat.  (U.  S.)  51, 
6  L.  Ed.  264;  Parsons  v.  Bedford,  3  Pet.  (U.  S.)  44&,  7  L.  Ed.  737;  Matter 
of  Freeman,  2  Curt.  491,  Fed.  Gas.  No.  5083;  United  States  v.  Knight,  3 
Sumn.  358,  Fed.  Cas.  No.  15,539. 


§§  471-472,  Ch.  16     MANUAL  OF  FEDERAL  PROCEDURE.  240 

also  be  consulted  the  federal  district  court  rules  of  the  district  in 
which  the  action  is  brought  as  to  the  details  of  methods  of  doing 
business  of  these  courts  under  the  authority  of  §  918,  Rev.  Stats., 
giving  power  to  regulate  by  rules  their  own  practice.2 

§  471.    Effect  of  Failure  to  Show  Jurisdictional  Grounds. 

§57,  Jud.  Code.  "If  in  any  suit  commenced  in  a  district 
court,  or  removed  from  a  state  court  to  a  district  court  of  the 
United  States,  it  shall  appear  »to  the  satisfaction  of  the  said 
district  court,  at  any  time  after  such  suit  has  been  brought  or 
removed  thereto,  that  such  suit  does  not  really  and  substan- 
tially involve  a  dispute  or  controversy  properly  within  the 
jurisdiction  of  said  district  court,  or  that  the  parties  to  said 
suit  have  been  improperly  or  collusively  made  or  joined,  either 
as  plaintiffs  or  defendants,  for  the  purpose  of  creating  a  case 
cognizable  or  removable  under  this  chapter,  the  said  district 
court  shall  proceed  no-  further  therein,  but  shall  dismiss  the 
suit  or  remand  it  to  the  court  from  which  it  was  removed,  as 
justice  may  require  and  shall  make  such  order  as  to  costs  as 
shall  be  just."  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  398;  1  U.  S. 
Comp.  Stats.  1916,  §  1019,  p.  1033;  Foster's  Federal  Practice, 
5th  ed.,  p.  1169.) 

§  472.    Effect  of  Erroneously  Beginning  as  a  Suit  in  Equity. 

Equity  Rule  22.  "If  at  any  time  it  appear  that  a  suit  com- 
menced in  equity  should  have  been  brought  as  an  action  on 
the  law  side  of  the  court,  it  shall  be  forthwith  transferred  to 
the  law  side  and  be  there  proceeded  with,  with  only  such  alter- 
ation in  the  pleadings  as  shall  be  essential."  (3  U.  S.  Comp. 
Stats.  1916,  §  1536,  p.  2502;  Foster's  Federal  Practice,  5th  ed., 
pp.  336,  725,  1184;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  27, 
28,  29,  302,  552.) 

§  274a,  Jud.  Code,  added  by  Act  March  3,  1915,  c.  90. 
"That  in  case  any  of  said  courts  shall  find  that  a  suit  at  law 
should  have  been  brought  in  equity  or  a  suit  in  equity  should 
have  been  brought  at  law,  the  court  shall  order  any  amend- 
ment to  the  pleadings  which  may  be  necessary  to  conform  them 

2  Ewing  v.  Burnham,  74  -pe(j    384; 'Mutual  Bldg.  Fund  etc.  Savings  Bank 
v.  Bossieux,  1  Hughes,  386,  Fed.  Cas.  No.  9977. 


241  THE  INITIAL  PLEADING LAW  ACTIONS.      Ch.  16,  §§  473-474 

to  the  proper  practice.  Any  party  to  the  suit  shall  have  the 
right,  at  any  stage  of  the  cause,  to  amend  his  pleadings  so  as 
to  obviate  the  objection  that  his  suit  was  not  brought  on  the 
right  side  of  the  court.  The  cause  shall  proceed  and  be  de- 
termined upon  such  amended  pleadings.  All  testimony  taken 
before  such  amendment,  if  preserved,  shall  stand  as  testimony 
in  the  cause  with  like  effect  as  if  the  pleadings  had  been  origi- 
nally in  the  amended  form."  (38  Stat.  956;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  1059;  2  U.  S.  Comp.  Stats.  1916,  §  125 la, 
p.  2023 ;  226  Fed.  653 ;  227  Fed.  199 ;  228  Fed.  577 ;  231  Fed. 
654;  233  Fed.  309;  237  Fed.  61.) 

§473.  Legal  and  Equitable  Causes  of  Action  may  not  be 
Joined.  The  fact  that  a  state  statute  abolishes  the  forms  of  ac- 
tion has  no  effect  on  the  forms  of  pleading  in  equity  suits  in  the 
federal  courts  in  that  state,  nor  does  such  statute  in  fact  change 
or  destroy  the  essential  distinctions  that  exist  between  law  and 
equity  cases,  to  wit:  (1)  in  their  manner  of  trial,  at  law  by  a 
jury,  in  equity  by  the  judge;  (2)  in  the  nature  of  the  remedies 
granted,  in  law,  compensatory  or  possessory,  which  if  adequate 
and  complete  will  preclude  the  granting  of  equitable  remedies, 
such  as  injunction,  specific  performance,  and  the  like ;  and,  (3)  in 
the  manner  of  enforcement  of  the  court's  orders,  in  all  cases 
applicable  by  the  writ  of  execution  and  such  other  process  as  the 
state  statute  may  give,  but  in  equity  under  Equity  Rule  8,  by 
acting  in  personam  by  means  of  contempt  proceedings  wherever 
it  is  necessary  to  so  enforce  the  orders  and  secure  the  relief 
sought. 

§474.  Form  of  Initial  Pleading.  The  following  is  given 
merely  by  way  of  suggestion  and  illustration,  and  will  vary  ac- 
cording to  the  state  practice  where  the  federal  court  is  situated. 
There  should  be  the  usual  caption  followed  by  a  statement  of  the 
citizenship  and  residence  of  the  parties;  the  ground  or  grounds 
of  federal  jurisdiction,  amount  in  controversy,  and  a  statement  of 
a  cause  of  action,  legal  in  its  nature,  to  wit:  requiring  a  possessory 

Manual — 16 


§  474,  Ch.  16  MANUAL  OF  FEDERAL  PROCEDURE.  242 

or  compensatory  remedy  without  equitable  incidents.  The  prayer 
for  relief  should  be  signed  by  counsel  and  verified  as  required  by 
the  state  practice.  The  form  below  will  illustrate: 

In  the  District  Court  of  the  United  States  Within  and  for  the  District  of , 

Division. 


John  Jones, 

Plaintiff, 


v. 


COMPLAINT  AT  LAW. 


MONEY   (OR  POSSESSION). 
Hen.ry  Smith, 

Defendant. 
John  Jones,  for  his  cause  of  action,  alleges: 

I.  That  he  is  a  citizen  of  the  state  of  ,  residing  at  in  said  state, 

and  the  defendant  is  a  citizen  of  the  state  of  ,  residing  at  ,  county 

of ,  in  said  state. 

II.  [Here  set  out  the  ground  of  federal  jurisdiction  and,  if  material,  the 
amount  or  value  involved.] 

III.  [A  statement  of  facts  showing  that  the  claim  is  legal,  in  other  words, 
a  statement  of  a  cause  of  action  for  which  the  remedies  or  compensation  or 
possession  will  be  complete  and  adequate,  and  not  requiring  the  interposition 
of  equity.] 

IV.  [The  prayer  for  relief.] 

V.  [Signature  and  verification  as  prescribed  by  state  practice  of  the  state 
where  the  federal  court  is  located.] 

It  is  well  to  set  out  the  citizenship  and  residence  of  the  parties, 
whether  the  case  depends  on  diverse  citizenship  or  not,  as  that  will 
give  uniformity  of  pleading  in  all  suits  and,  except  in  local  actions, 
will  also  show  whether  the  venue  has  been  properly  laid.3 

The  only  remedies  that  may  be  sought  in  a  federal  suit  at  law  are 
possessory  or  compensatory,  and  the  initial  pleading  in  a  suit  at 
law  can  seek  these  remedies,  and  no  others. 

3  Whithead  v.  Shattuck,  138  U.  S.  146  34  L.  Ed.  873,  11  Sup.  Ct.  276-; 
South  Penn  Oil  Co.  v.  Miller,  175  Fed.  729,  735,  99  C.  C.  A.  305.  See,  also, 
Beatty  v.  Wilson,  161  Fed.  453.  • 


ATTACHMENT  AND  GARNISHMENT.  Ch.  17 


CHAPTER  17. 

ATTACHMENT  AND  GARNISHMENT  IN  LAW  CASES. 

BEO. 

480.  Attachment  and  Garnishment — Adoption  of  State  Laws  Except  Against 

National  Banks. 

481.  Rules  by  Federal  Courts  Adopting  State  Attachment  Remedies. 

482.  Construction  of  State  Attachment  Statutes  by  State  Courts  Followed  in 

Federal  Courts. 

483.  Attachment  not  a  Basis  for  Substituted  Service,  but  Merely  a  Provi- 

sional Remedy. 

484.  Causes  of  Action  in   Which  Attachments  are  Authorized  Governed  by 

State  Law. 

485.  Property  Subject  to  Attachment — State  Laws  Govern. 

486.  Affidavit  for  Attachment  Should  Conform  to  State  Law. 

487.  Amendment  of  Affidavit  for  Attachment. 

488.  Bond  for  Attachment. 

489.  The  Writ  of  Attachment — Amendment,  §  948,  Rev.  Statg. 

490.  Lien  of  Attachment. 

491.  Priorities — Several  Attachments. 

492.  Delivery  Bond. 

493.  Third-party  Claims  Follow  State  Laws. 

494.  Dissolution  of  Attachments  "Under  §  933,  Rev.  Stats. — Conforms  to  State 

Laws. 

495.  Attachments  in  Postal  Suits. 

496.  Same — Application  for  Warrant  Under  §  925,  Rev.  Stats. 

497.  Same — Issuing  Warrant — Duties  of  Clerk  and  Marshal  Under  §  926,  Rev. 

Stats. 

498.  Same — Ownership  of  Property — Trial  Under  §  927,  Rev.  Stats. 

499.  Same — Proceeds  of  Sale — Investment  Under  §  928,  Rev.  Stats. 

500.  Same — Publication  of  Warrant  Under  §  929,  Rev.  Stats. 

501.  Same — Garnishees  of  Delinquents  in  Postal  Suits  Under  §  930,  Rev.  Stats. 

502.  Same — Discharge  of  Warrant  on  Giving  Bond   Under  §  031,  Rev.  Stats. 

503.  Same — Adoption  of  State  Attachment  Laws  and  Former  Practice  not 

Affected  by  Postal  Attachment  Laws. 

504.  Garnishment — General  Statement. 

505.  Effect  of  Garnishment. 

506.  Notice  of  Garnishment. 

507.  Persons  and  Property  Subject  to  Garnishment. 

508.  Issue  by  Garnishee. 

509.  Judgments  Against  Garnishee. 


§  480,  Ch.  17  MANUAL  OF  FEDERAL  PROCEDURE.  244 

SEC. 

510.  Garnishees  in  Suits  by  the  Government  Against  Corporations. 

511.  Same — Issue  Tendered  When  Garnishee  Denies  Indebtedness. 

512.  Srfme — Garnishee  in  Contempt  on  Failing  to  Appear. 

513.  Claim  to  Property  in  Alien  Property  Custodian — Limitation  of  Attach- 

ment of. 

§  480.  Attachment  and  Garnishment — Adoption  of  State  Laws 
Except  Against  National  Banks. 

§915,  Rev.  Stats.  "In  common-law  causes  in  the  [circuit 
and]  district  courts  the  plaintiff  shall  be  entitled  to  similar 
remedies,  by  attachment  or  other  process,  against  the  prop- 
erty of  the  defendant,  which  are  now  provided  by  the  laws 
of  the  state  in  which  such  court  is  held  for  the  courts  thereof ; 
and  such  circuit  or  district  courts  may,  from  time  to  time,  by 
general  rules,  adopt  such  state  laws  as  may  be  in  force  in  the 
states  where  they  are  held  in  relation  to  attachments  and  other 
process:  Provided,  That  similar  preliminary  affidavits  or 
proofs,  and  similar  security,  as  required  by  such  state  laws, 
shall  be  first  furnished  by  the  party  seeking  such  attachment 
or  other  remedy."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  64;  3  U.  S. 
Comp.  State.  1916,  §  1539,  p.  3069.) 

Not  Against  National  Banks. 

Part,  §  5242,  Rev.  Stats.  "...  no  attachment  .  .  .  shall 
be  issued  against  such  association  or  its  property  before  final 
judgment  in  any  suit,  action,  or  proceeding,  in  any  state, 
county,  or  municipal  court."  (6  Fed.  Stats.  Ann.,  2d  ed., 
p.  903;  9  U.  S.  Comp.  Stats.  1916,  §  9834.) 

Under  §  5242,  Rev.  Stats.,  above  quoted,  the  power  to  issue 
attachments  against  national  banks  being  eliminated  from  state 
statutes,  there  would  be  no  right  to  same  in  the  federal  courts 
under  §  915,  Rev.  Stats.,  allowing  adoption  of  state  laws.1 

Property  transferred  to  the  alien  property  custodian  is  not 
liable  to  attachment  except  as  provided  in  Act  Oct.  6,  1917.  (See 
§  513,  post.) 

i  Pacific  Nat.  Bank  v.  Mixter,  124  U.  S.  721,  31  L.  Ed.  570,  8  Sup.  Ct.  718. 


245  ATTACHMENT  AND  GARNISHMENT.      Ch.  17,  §§  431-483 

§481.  Rules  by  Federal  Courts  Adopting  State  Attachment 
Remedies.  The  rules  adopting  state  laws  for  attachment  pro- 
ceedings need  not  be  in  writing.2 

It  is  presumed  that  the  federal  courts  have  adopted  the  state 
statutes.3 

The  federal  courts  have  a  large  discretion  in  these  matters.4 

§482.  Construction  of  State  Attachment  Statutes  by  State 
Courts  Followed  in  Federal  Courts.  The  scope,  meaning  and 
application  of  the  state  attachment  law  and  practice  under  it  as 
construed  by  the  state  courts  will  be  followed  in  the  federal 
courts.5 

§  483.  Attachment  not  a  Basis  for  Substituted  Service,  but 
Merely  a  Provisional  Remedy.  Attachments  in  the  federal  courts 
cannot  be  made  the  basis  for  service  on  an  absent  defendant  by 
publication  because  of  the  requirements  of  §  51  of  the  Jud.  Code 
as  to  the  venue  of  actions  requiring  the  suit  to  be  brought  in 
the  district  of  a  defendant's  residence,  except  as  in  the  succeed- 
ing sections  provided.  §  57,  Jud.  Code,  allows  service  by  pub- 
lication on  absent  defendants  in  suits  to  enforce  liens  or  remove 
clouds  from  title. 

"The  attachment  proceeding,  therefore,  in  the  courts  of  the 
United  States,  has  altogether  a  different  character  from  that 
proceeding  in  rem  in  common  use  in  the  states,  the  object  of  which 
is  either  to  enforce  the  appearance  of  the  absent  defendant  or 
to  subject  his  property  to  the  payment  of  his  debts.  In  the  fed- 
eral courts  there  must  be  jurisdiction  over  the  person  of  the 
defendant  and  of  a  subject  matter,  independent  of  the  proceed- 

2  Citizens'  Bank  v.  Farwell,  56  Fed.  570,  6  C.  C.  A.  24;  Logan  v.  Goodwin, 
104  Fed.  490,  43  C.  C.  A.  658;  United  States  v.  Stevenson,  1  Abb.  495,  Fed. 
Gas.  No.  16,395. 

3  Logan  v.  Goodwin,  104  Fed.  490,  43  C.  C.  A.  658;  Lowry  v.  Story,  31 
Fed.  771;  Fullerton  v.  United  States  Bank,  1  Pet,  (U.  S.)  604,  7  L.  Ed.'  280. 

4  Shcpard  v.  Adams,  168  U.  S.  62-5,  42  L.  Ed.  (W2,  18  Sup.  Ct.  214. 

•'  Third  Nat.  Bank  of  Baltimore  v.  Teal,  5  Fed.  503,  4  Hughes,  572;  Fleitas 
v.  Cockrem,  101  U.  S.  301,  25  K  Ed.  954. 


§  483,  Ch.  17  MANUAL  OF  FEDERAL  PROCEDURE.  246 

ing  in  attachment,  and  without  which  no  attachment  can  be 
effectual."6 

"It  is  conceded  that  the  person  against  whom  this  suit  was 
brought  in  the  circuit  court  (of  the  United  States  for  the  dis- 
trict of  Iowa)  was  an  inhabitant  of  the  state  of  Massachusetts, 
and  was  not  found  in  or  served  with  process  in  Iowa.  Clearly, 
then,  he  was  not  suable  in  the  circuit  court  of  the  district  of  Iowa, 
and  unless  he  could  be  sued  no  attachment  could  issue  for  that 
court  against  his  property."7 

In  Bucyrus  v.  McArthur  (M.  D.  Tenn.),  219  Fed.  266,  at  pages 
268,  269,  the  court  said : 

"It  is  well  settled  that  the  federal  courts,  under  the  provi- 
sions of  the  laws  of  the  United  States  governing  the  issuance 
of  process  are  not  authorized  to  issue  foreign  attachments  as 
the  original  process  commencing  suits  against  defendants  not 
amenable  to  personal  service  of  process.  Toland  v.  Sprague, 
12  Pet.  (U.  S.)  300,  329,  9  L.  Ed.  1093;  Saddler  v.  Hudson, 
2  Curt.  6,  21  Fed.  Gas.  135 ,  No.  12,206 ;  Dormitzer  v.  Illinois 
etc.  Bridge  Co.  (C.  C.),  6  Fed.  217,  218.  And  see  Courtney  v. 
Pradt  (6th  Cir.),  160  Fed.  561,  562,  87  C.  C.  A.  463,  citing 
Chicago  etc.  R.  Co.  v.  Sturn,  174  U.  S.  710,  715,  43  L.  Ed.  1144, 
19  Sup.  Ct.  797.  And  section  915  of  the  Revised  Statutes  (de- 
rived from  the  act  of  June  1,  1872,  c.  255,  §  6,  17  Stats.  187), 
adopting  in  common-law  causes  in  the  federal  courts  the  laws 
of  the  several  states  in  relation  to  attachments  and  other 
process  against  the  property  of  defendants,  merely  authorizes 
the  issuance  of  ancillary  attachments  for  the  purpose  of  im- 
pounding the  property  of  defendants  of  whose  person  the  court 
may  otherwise  acquire  jurisdiction.  Chittenden  v.  Darden, 
2  Woods,  437,  5  Fed.  Cas.  642,  No.  2688 ;  Nazro  v.'  Cra'gin,  3 
Dill.  474,  17  Fed.  Cas.  1259,  1260,  No.  10,062;  North  v.  Mc- 
Donald, 1  Biss.  57,  18  Fed.  Cas.  332,  333,  No.  10,312;  Anderson 
v.  Shaffer  (C.  C.),  10  Fed.  266,  267;  Boston  Elec.  Co.  v.  Electric 
Gas-Lighting  Co.  (C.  C.),  23  Fed.  838,  839;  and,  by  implication, 
Ex  parte  Des  Moines  etc.  R.  R.  Co.,  103  U.  S.  794,  796,  26  L.  Ed. 

«  Erstein  v.  Rothschild,  22  Fed.  61.  See,  also,  Lovejoy  r.  Hartford  F.  Ins. 
Co.,  11  Fed.  63;  Lackett  v.  Rumbaugh,  45  Fed.  23,  29. 

7  Ex  parte  Des  Moines  etc.  R.  R.  Co.,  103  U.  S.  794.  26  L.  Ed.  461.  See, 
also,  Toland  v.  Sprague,  12  Pet.  (U.  S.)  300,  9  L.  Ed.  1093, 


247  ATTACHMENT  AND  GARNISHMENT.  Ch.  17,  §  483 

461,  and  Tread  well  v.  Seymour  (C.  C.),  41  Fed.  579,  581.  The 
contrary  opinion  in  Guillou  v.  Fontain,  32  Leg.  Int.  362,  11 
Fed.  Gas.  108,  No.  5861,  is  contrary  to  the  great  weight  of 
authority,  and  does  not,  in  my  opinion,  rightly  interpret  the 
provisions  of  the  statute.  Such  ancillary  attachment,  when 
otherwise  authorized,  may,  however,  it  seems,  be  issued  in  con- 
nection with  the  personal  process  when  the  defendant  is  amen- 
able thereto.  Toland  v.  Sprague,  supra,  12  Pet  at  page  329, 
9  L.  Ed.  1093;  North  v.  McDonald,  supra,  18  Fed.  Gas.,  at 
page  333. 

"Such  ancillary  attachment  of  the  defendant's  property  is, 
however,  a  purely  statutory  remedy,  in  derogation  of  the  com- 
mon law.  1  Shinn  on  Attachment,  §  8  (g),  p.  10;  4  Cyc.  396, 
and  cases  cited  in  note  3;  3  Am.  &  Eng.  Ency.  Law  (2d  ed.), 
184.  It  is  entirely  unknown  to  the  immemorial  practice  and 
usage  of  courts  of  equity,  either  in  England  or  in  the  United 
States,  and  is  essentially  a  legal  remedy,  which,  in  the  absence 
of  statutory  authority,  is  not  available  in  equity.  Drake  on 
Attachments  (3d  ed.),  §  4,  a,  p.  4;  Shinn  on  Attachments, 
supra,  §  7,  p.  9;  1  Bouv.  Law  Diet.  (15th  ed.),  202;  3  Am.  & 
Eng.  Ency.  Law  (2d  ed.),  184,  193;  Lackland  v.  Garesche,  56 
Mo.  267,  270;  McPherson  v.  Snowden,  19  Md.  197;  People's 
Bank  v.  Shryock,  48  Md.  427,  30  Am.  Rep.  476,  478.  And  see 
Courtney  v.  Pradt  (6th  Cir.),  supra,  160  Fed.,  at  page  562, 
87  C.  C.  A.  463;  Shiel  v.  Patrick  (2d  Cir.),  59  Fed.  992,  993, 
8  C.  C.  A.  440;  Black's  Law  Diet.  (2d  ed.),  101. 

"There  is,  however,  no  statutory  authority  for  the  issuance 
of  such  an  attachment  in  an  equity  cause  in  a  federal  court. 
Section  915  of  the  Revised  Statutes,  adopting  in  the  federal 
courts  the  laws  of  the  several  states  in  relation  to  attachments 
against  the  property  of  defendants,  is  specifically  limited  to 
'common-law  causes';  and  section  914  of  the  Revised  Statutes, 
providing  that  the  practice  and  procedure  in  federal  courts 
shall  conform  to  those  of  the  state  courts,  specifically  excludes 
'equity  causes.'  Neither  has  the  supreme  court  of  the  United 
States,  in  promulgating  the  rules  of  equity  practice  in  the  dis- 
trict courts,  under  the  authority  vested  in  it  by  section  917 
of  the  Revised  Statutes,  provided  for  such  ancillary  writs  of 
attachment.  Nor  is  provision  made  therefor  by  any  rule  of 
this  court;  although  it  may  well  be  that  this  could  be  <li>iu- 
in  accordance  with  the  79th  Rule  of  Equity  Practice  (198 


§§  484-487,  Ch.  17     MANUAL  OF  FEDERAL  PROCEDURE.  248 

Fed.  xli,  115  C.  C.  A.  xli),  and  under  the  various  statutory 
provisions  cited  in  Steam  Stone-Cutter  Co.  v.  Sears  (C.  C.), 
9  Fed.  8,  20  Blatchf.  23,  and  Steam  Stone-Cutter  Co.  v.  Jones 
(C.  C.),  13  Fed.  567,  21  Blatchf.  138." 

§  484.  Causes  of  Action  in  Which  Attachments  are  Authorized 
Governed  by  State  Law.  There  are  some  variations  in  the  sev- 
eral states  as  to  the  kind  of  action  in  which  an  attachment  will 
be  permitted.  The  federal  courts  follow  the  state  laws  on  this 
subject.8 

§  485.  Property  Subject  to  Attachment — State  Laws  Govern. 
The  state  laws  govern  as  to  the  property  subject  to  attachment,9 
but  in  the  federal  courts  property  of  an  equitable  nature  10  and 
property  in  custodia  legis  cannot  be  attached,11  except  as  several 
levies  are  allowed. 

§  486.  Affidavit  for  Attachment  Should  Conform  to  State  Law. 
The  state  requirements  as  to  grounds  to  be  stated  in  the  affidavit 
for  attachment  by  whom  to  be  made,  etc.,  govern  such  affidavits 
in  the  federal  courts.12 

§  487.    Amendment  of  Affidavit  for  Attachment. 

§545,  Rev.  Stats.  "Any  [circuit  or]  district  court  may  at 
any  time,  in  its  discretion,  and  upon  such  terms  as  it  may 
deem  just,  allow  an  amendment  of  any  process  returnable 
to  or  before  it,  where  the  defect  has  not  prejudiced,  and  the 
amendment  will  not  injure,  the  party  against  whom  such 

8  Seeley  v.  Missouri,  K.  &  T.  E.  Co.,  39  Fed.  253;  Eothschild  v.  Knight, 
184  U.  S.  334,  46  L.  Ed.  573,  22  Sup.  Ct.  391. 

9  Thompson  v.  Baker,  141  U.  S.  648,  35  L.  Ed.  889,  12  Sup.  Ct.  89;  Cbulson 
v.  Panhandle  Nat.  Bank,  54  Fed.  855,  858,  4  C,  C.  A.  616;  Bigelow  v.  Chatter- 
ton,  51  Fed.  614,  2  C.  C.  A.  402;  Richmond  v.  Brookings,  48  Fed.  241;  Mont- 
gomery v.  MeDermott,  103  Fed.  801,  43  C.  C.  A.  348;  Simonds  v.  Pearce,  31 
Fed.  137;  Hankinsop  v.  Page,  31  Fed.  185,  24  Blatchf.  422. 

10  Shiel'v.  Patrick,  59  Fed.  992,  8  C.  C.  A.  440. 

11  Corbitt  v.  Farmers'  Bank.  114  Fed.  602;  Henry  v.  Gold  Park  Min.  Co., 
15  Fed.  649,  5  McCrary,  70;  Clarke  v.  Shaw,  28  Fed.  356. 

12  Johnson   v.   Johnson,   31    Fed.   700;    Societe   Fonciere   v.   Milliken,    135 
U.  S.  304,  34  L.  Ed.  208,  10  Sup.  Ct.  823;  Glidden  v.  Whittier,  46  Fed.  437; 
Bigelow  v.  Chatterton,  51  Fed.  614,  2  C.  C.  A.  402. 


249  ATTACHMENT  AND  GARNISHMENT.      Ch.  17,  §§  488-489_ 

process  issues."     (6  Fed.   Stats.   Ann.,   2d  ed.,  title  "Judi- 
ciary"; 3  U.  S.  Comp.  Stats.  1916,  §  1580.) 

This  section  applies  to  a  defective  affidavit  for  attachment.13 
So,  also,  with  respect  to    defective  affidavit  for  garnishment 
though  amendment  not  allowed  by  state  law.14 

Where  state  law  authorizes  amendment  under  certain  condi- 
tions, these  rights  will  be  given  in  federal  courts.15 

§488.  Bond  for  Attachment.  "The  plaintiff  seeking  an  at- 
tachment in  the  federal  court  against  the  property  of  the  de- 
fendant is  required  to  furnish  security  in  the  same  manner  as  to 
amount  and  the  qualification  and  residence  of  the  sureties  that 
he  would  have  to  furnish  if  he  were  proceeding  in  the  state 
court."16 

The  construction  of  the  bond  is  governed  by  state  laws.17 

Amendment  of  the  bond  is  allowed.18 

Action  on  bond  may  be  maintained  in  federal  court.19 

§  489.  The  Writ  of  Attachment— Amendment,  §  948,  Rev.  Stats. 
(§487  above).  The  form  and  issuance  of  the  writ  should  con- 
form to  state  practice.20 

Increasing  amount  will  not  dissolve  attachment.21 

The  power  to  amend  in  attachment  suits  is  the  same  as  in  other 
cases.22 

The  court  seal  may  be  added  under  §  948,  Rev.  Stats.23 

13  Erstein  v.  Kothschild,  22  Fed.  61. 

14  Booth  v.  Denike,  65  Fed.  43. 

is  Salmon  v.  Mills,  49  Fed.  333,  1  C.  C.  A.  278;  Fleischner  v.  Pacific  Postal 
Teleg.  Cable  Co.,  55  Fed.  739;  Rothschild  v.  Knight,  184  U.  S.  334,  46  L.  Ed. 
573,  22  Sup.  Ct.  391;  Fitzpatrick  v.  Flannagan,  106  U.  S.  648,  27  L.  Ed. 
211,  1  Sup.  Ct.  369. 

is  Singer  Mfg.  Co.  v.  Mason,  5  Dill.  488,  Fed.  Cas.  No.  12,903.  See,  also, 
Fleitas  v.  Cock'rem,  101  U.  S.  301,  25  L.  Ed.  954;  Blue  Grass  Canning  Co.  v. 
Steward,  175  Fed.  537,  541,  99  C.  C.  A.  159. 

n  Fidelity  &  D.  Co.  v.  L.  Bucki  &  Son  Lumber  Co.,  189  U.  S.  135,  47 
L.  Ed.  744,  23  Sup.  Ct.  582. 

18  Bumberger  v.  Gerson,  24  Fed.  257. 

i»  Files  v.  Davis,  118  Fed.  465. 

20  Russia  Cement  Co.  v.  Le  Page  Co.,  174  Mass.  349,  55  N.  E.  70. 

21  Cutler  v.  Lang.  30  Fed.  173. 

22  Tilton  v.  Cofield,  93  U.  S.  1G7,  23  L.  Ed.  860. 

23  Wolf  v.  Cook,  40  Fed.  4"2. 


§§  490-491,  Ch.  17      MANUAL  OF  FEDERAL  PROCEDURE.  250 

§  490.  Lien  of  Attachment.  The  lien  created  by  the  levy  is 
governed  by  state  laws.24 

Personal  property  is  taken  into  the  custody  of  the  marshal.25 
By  §  60,  Jud.  Code,  quoted,  §  70,  supra,  and  in  the  Appendix, 
post,  it  is  provided  that  the  lien  of  an  attachment  or  seizure,  etc., 
shall  not  be  divested  by  a  change  of  boundaries,  but  a  certified 
copy  filed  in  the  court  of  the  division  or  district  where  the  property 
was  located  after  the  change  would  have  the  effect  of  an  original. 

§  491.  Priorities  —  Several  Attachments.  The  federal  and 
state  courts  are  of  co-ordinate  authority  in  administering  the  state 
attachment  laws.  The  court  under  whose  authority  the  first  levy 
is  made  is  entitled  to  the  actual  custody  and  possession  of  the 
property.26  The  federal  courts  are  entitled,  however,  to  make 
a  constructive  levy  on  property  in  the  possession  of  a  state  officer 
when  the  state  law  authorizes  successive  levies  and  a  method  of 
settling  priorities.27 

Likewise  the  state  authorities  may  constructively  levy  on  prop- 
erty in  the  possession  of  the  marshal,  and  intervene  in  proceed- 
ings in  the  federal  courts  in  the  same  district.28 

The  rights  of  other  creditors  will  be  preserved  in  the  federal 
courts  even  if  their  claims  are  less  than  the  jurisdictional  amount 
required  to  sustain  a  suit,  in  such  courts,29  and  without  reference 
to  the  citizenship  of  the  parties.30 

24  Hankinson  v.  Page,  31  Fed.  184,  24  Blatchf.  422. 

25  Adler  v.  Roth,  5  Fed.  895,  2  McCrary,  445;  Coulson  v.  Panhandle  Nat. 
Bank,  54  Fed.  855-858,  4  C.  C.  A.  616.     See  Dudley  v.  Lamoille   Co.  Nat. 
Bank,  14  Fed.  217;  Richmond  v.  Brookings,  48  Fed.  241;  People's  Sav.  Bank 
&  T.  Co.  v.  Batchelder  Eg?  Case  Co.,  51  Fed.  131-137,  2  C.  C.  A.  126;  Hankin- 
son v.  Page,  31  Fed.  184,  24  Blatchf.  422. 

26  Adler  v.  Roth,  5  Fed.  895,  2  McCrary,  445;  Bates  v.  Days,  17  Fed.  167, 

5  McCrary,  342. 

27  Brooks  v.  Fry,  45  Fed.  776. 

28  Gumbel  v.  Pitkin,  124  U.  S.  131,  31  L.  Ed.  374,  8  Sup.  Ct.  379;  Bates  v. 
Days.  17  Fed.  167,  5  McCrary,  342. 

2J>  Krippendorf  v.  Hyde,  110  U.  S.  284,  28  L.  Ed.  145,  4  Sup.  Ct.  27;  Rice 
v.  Adler-Goldman  Co.,  71  Fed.  151,  18  C.  C.  A.  15. 

30  Gumbel  v.  Pitkin,  124  U.  S.  132,  31  L.  Ed.  374,  8  Sup.  Ct.  379;  Fountain 
v.  624  Pieces  of  Timber,  140  Fed.  381;  Hatcher  v.  Hendrie  &  B.  Mfg. 

6  Supply  Co.,  133  Fed.  267,  68  C.  C.  A.  19;  Central  Trust  Co.  v.  Worcester 
Cycle  Mfg.  Co.,  128  Fed.  483. 


251  ATTACHMENT  AND  GARNISHMENT.      Ch.  17,  §§  492-404 

On  removal  the  federal  courts  will  distribute  the  fund  or  pro- 
ceeds of  attached  property  under  the  state  laws.31 

§  492.  Delivery  Bond.  The  provision  of  a  state  law,  or  the 
redelivery  of  attached  property  to  the  defendant  upon  his  fur- 
nishing a  delivery  bond,  is  recognized  and  followed  in  the  federal 
courts.32  Likewise  a  provision  of  state  law  not  permitting  a  de- 
livery bond  to  release  attached  money  will  be  recognized  in  the 
federal  courts.33 

§493.  Third-party  Claims  Follow  State  Laws.  The  provi- 
sion of  a  state  law  permitting  a  third  party  to  claim  attached 
property  by  affidavit  of  ownership  and  furnishing  bond  will  be 
followed  in  the  federal  courts.34  The  raising  of  the  issue  of 
ownership  has  also  been  permitted  by  motion  to  vacate  the  attach- 
ment.35 

§  494.  Dissolution  of  Attachments  Under  §  933,  Rev.  Stats.— 
Conforms  to  State  Laws. 

§  933  Rev.  Stats.  "An  attachment  of  property,  upon  process 
instituted  in  any  court  of  the  United  States,  to  satisfy  such 
judgment  as  may  be  recovered  by  the  plaintiff  therein,  ex- 
cept in  the  cases  mentioned  in  the  preceding  nine*  sections 
(in  postal  suits),  shall  be  dissolved  when  any  contingency 
occurs  by  which,  according  to  the  laws  of  the  state  where 
said  court  is  held,  such  attachment  would  be  dissolved  upon 
like  process  instituted  in  the  courts  of  said  state:  Provided, 
That  nothing  herein  contained  shall  interfere  with  any 
priority  of  the  United  States  in  the  payment  of  debts." 
(1  Fed.  Stats.  Ann.,  2d  ed.,  pp.  485,  486;  3  U.  S.  Comp.  Stats. 
1916,  §1559,  p.  3110.) 

81  Bankers  &  M.  Tel.  Co.  v.  Chicago  Carpet  Co.,  28  Fed.  398. 
32  Kbncr  v.  Held,  125  Fed.  680,  60  C.  C.  A.  370. 
83  United  States  v.  Neely.  154  Fed.  496. 

34  Harden  v.  Starr,  107  Fed.  199;  Batavia  v.  Wallace,  102  Fed.  240,  42 
C.  0.  A.  310;  Tennent-Stribling  Shoe  Co.  v.  Roper,  128  Fed.  40,  62  C.  C.  A. 
548. 

35  United  States  v.  Neeley,  146  Fed.  763. 


§  495,  Ch.  17  MANUAL  OP  FEDERAL  PROCEDURE.  252 

Under  the  provision  above  quoted,  the  State  law  was  followed 
requiring  a  general  appearance  before  entertaining  a  motion  to 
dissolve  the  attachment.  (Feurer  v.  Stewart,  82  Fed.  294.) 

So,  also,  a  law  which  provided  that  the  defendants  do  not  waive 
right  to  move  to  discharge  of  attachment  by  mere  execution  of  a 
bond  by  them  for  the  release  of  the  attached  property.  (Gliddeu 
v.  Whittier,  46  Fed.  437.) 

But  as  in  other  matters  of  appellate  procedure,  State  laws  give 
way  to  federal  statutes.  Thus  the  time  within  which  writs  of 
error  may  be  sued  out  to  review  an  order  discharging  the  attach- 
ment, the  federal  law  controls.  (Logan  v.  Goodwin,  101  Fed. 
654,  41  C.  C.  A.  573.) 

As  to  effect  of  state  insolvency  proceedings  as  a  dissolution  of 
attachment:  Mayer  v.  Cahalin,  5  Sawy.  355,  Fed.  Gas.  No.  9340; 
Mather  v.  Nesbit,  13  Fed.  872,  4  McCrary,  505 ;  Neufeld  v.  Neufeld, 
37  Fed.  560,  13  Sawy.  604;  Schwartz  v.  H.  B.  Claflin  Co.,  60  Fed. 
676,  9  C.  C.  A.  204 ;  Tua  v.  Carriere,  117  U.  S.  201,  29  L.  Ed.  855, 
6  Sup.  Ct.  565. 

Effect  of  pleading  insolvency  by  defendants  in  an  attachment; 
time  of  pleading  insolvency :  Muser  v.  Kern,  55  Fed.  916. 

§  495.    Attachments  in  Postal  Suits. 

§  924,  Rev.  Stats.  "In  all  cases  where  debts  are  due  froni' 
defaulting  or  delinquent  postmasters,  contractors,  or  other 
officers,  agents,  or  employees  of  the  Postoffice  Department,  a 
warrant  of  attachment  may  issue  against  all  real  and  personal 
property  and  legal  and  equitable  rights  belonging  to  such 
officer,  agent,  or  employee,  and  his  sureties,  or  either  of  them, 
in  the  following  cases: 

"First.  When  such  officer,  agent,  or  employee,  and  his 
sureties,  or  either  of  them,  is  a  nonresident  of  the  district 
where  such  officer,  agent,  or  employee  was  appointed,  or  has 
departed  from  such  district  for  the  purpose  of  permanently 
residing  out  of  the  same,  or  of  defrauding  the  United  States,  or 
of  avoiding  the  service  of  civil  process. 

"Second.  When  such  officer,  agent,  or  employee,  and  his 
sureties,  or  either  of  them,  has  conveyed  away,  or  is  about 


253  ATTACHMENT  AND  GARNISHMENT.      Ch.  17,  §§  496-497 

to  convey  away  his  property,  or  any  part  thereof,  or  has 
removed  or  is  about  to  remove  the  same  or  any  part  thereof 
from  the  district  wherein  it  is  situate,  with  intent  to  defraud 
the  United  States. 

"And  when  any  such  property  has  been  removed,  certified 
copies  of  the  warrant  may  be  sent  to  the  marshal  of  the  dis- 
trict into  which  the  same  has  been  removed,  under  which 
certified  copies  he  may  seize  said  property  and  convey  it  to 
some  convenient  point  within  the  jurisdiction  of  the  court 
from  which  the  warrant  originally  issued.  And  alias  war- 
rants may  be  issued  in  such  cases  upon  due  application,  and 
the  validity  of  the  warrant  first  issued  shall  continue  upon 
due  application,  and  the  validity  of  the  warrant  first  issued 
shall  continue  until  the  return  day  thereof."  (1  Fed.  Stats. 
Ann.,  2d  ed.,  p.  483;  3  U.  S.  Comp.  Stats.  1916,  §  1550.) 

§  496.    Same — Application   for   Warrant    Under   §  925,    Rev. 

Stats. 

§555,  Rev.  Stats.  "Application  for  such  warrant  of  at- 
tachment may  be  made  by  any  district  or  assistant  district 
attorney,  or  any  other  person  authorized  by  the  Postmaster 
General,  before  the  judge,  or,  in  his  absence,  before  the  clerk 
of  any  court  of  the  United  States  having  original  jurisdiction 
of  the  cause  of  action.  And  such  application  shall  be  made 
upon  an  affidavit  of  the  applicant,  or  of  some  other  credible 
person,  stating  the  existence  of  either  of  the  grounds  of  at- 
tachment enumerated  in  the  preceding  section,  and  upon  pro- 
duction of  legal  evidence  of  the  debt."  (1  Fed.  Stats.  Ann., 
2d  ed.,  p.  484;  3  U.  S.  Comp.  Stats.  1916,  §  1551.) 

§  497.    Same — Issuing  Warrant — Duties  of  Clerk  and  Marshal 
Under  §  926,  Rev.  Stats. 

§  926,  Rev.  Stats.  "Upon  any  such  application  and  upon 
due  order  of  any  judge  of  the  court,  or,  in  his  absence,  with- 
out such  order,  the  clerk  shall  issue  a  warrant  for  the  attach- 
ment of  all  the  property  of  any  kind  belonging  to  the  person 
specified  in  the  affidavit,  which  warrant  shall  be  executed  with 
all  possible  dispatch  by  the  marshal,  who  shall  take  the  prop- 
erty attached,  if  personal,  into  his  custody,  and  hold  the  same 


§§  498-500,  Ch.  17     MANUAL  OF  FEDERAL  PROCEDURE.  254 

subject  to  all  interlocutory  or  final  orders  of  the  court." 
(1  Fed.  Stats.  Ann.,  2d  ed.,  p.  484 ;  3  U.  S.  Comp.  Stats.  1916, 
§  1552.) 

§498.    Same — Ownership    of    Property— Trial   Under    §927, 
Rev.  Stats. 

§  927,  Rev.  Stats.  "At  any  time  within  twenty  days  before 
the  return  day  of  such  warrant,  the  party  whose  property  is 
attached  may,  on  giving  notice  to  the  district  attorney  of 
his  intention,  file  a  plea  in  abatement,  traversing  the  allega- 
tions of  the  affidavit,  or  denying  the  ownership  of  the  prop- 
erty attached  to  be  in  the  defendants  or  either  of  them; 
in  which  case  the  court  may,  upon  application  of  either  party, 
order  an  immediate  trial  by  jury  of  the  issues  raised  by  the 
affidavit  and  plea;  but  the  parties  may,  by  consent,  waive 
a  trial  by  jury,  in  which  case  the  court  shall  decide  the  issues 
raised.  And  any  party  claiming  ownership  of  the  property 
attached  and  a  specific  return  thereof  shall  be  confined  to 
the  remedy  herein  afforded,  but  his  right  to  an  action  of 
trespass,  or  other  action  for  damages,  shall  not  be  impaired 
hereby."  (1  Fed.  Stats.  Ann.,  2d  ed.,  p.  484;  3  U.  S.  Comp. 
Stats.  1916,  §  1553.) 

§  499.    Same— Proceeds  of  Sale — Investment  Under  §  928,  Rev. 
Stats. 

§  928,  Rev.  Stats.  "When  the  property  attached  is  sold  on 
any  interlocutory  order  of  the  court  or  is  producing  any 
revenue,  the  money  arising  from  such  sale  or  revenue  shall  be 
invested  in  securities  of  the  U.nited  States,  under  the  order 
of  the  court,  and  all  accretions  shall  be  held  subject  to  the 
orders  of  the  same."  (1  Fed.  Stats.  Ann.,  2d  ed.,  p.  485; 
3  U.  S.  Comp.  Stats.  1916,  §  1554.) 

§  500.     Same — Publication  of  Warrant  Under  §  929,  Rev.  Stats. 

§  929,  Rev.  Stats.  "Immediately  upon  the  execution  of  any 
such  warrant  of  attachment,  the  marshal  shall  cause  due  pub- 
lication thereof  to  be  made,  in  the  case  of  absconding  debtors 
for  two  months  and  of  nonresidents  for  four  months.  The 
publication  shall  be  made  in  some  newspaper  published  in 


255  ATTACHMENT  AND  GARNISHMENT.      Ch.  17,  §§  501-503 

• 

the  district  where  the  property  is  situate,  and  the  details 
thereof  shall  be  regulated  by  the  order  under  which  the  war- 
rant is  issued."  (1  Fed.  Stats.  Ann.,  2d  ed.,  p.  485;  3  U.  S. 
Comp.  Stats.  1916,  §  1555.) 

§  501.     Same — Garnishees  of  Delinquents  in  Postal  Suits  Under 
§930,  Rev.  Stats. 

§  930,  Rev.  Stats.  "After  the  first  publication  of  such 
notice  of  attachment  as  required  by  law,  every  person  indebted 
to,  or  having  possession  of  any  property  belonging  to,  the  said 
defendants,  or  either  of  them,  and  having  knowledge  of  such 
notice,  shall  account  and  answer  for  the  amount  of  such  debt 
and  the  value  of  such  property ;  and  any  disposal  or  attempt 
to  dispose  of  any  such  property,  to  the  injury  of  the  United 
States,  shall  be  illegal  and  void.  And  when  the  person  in- 
debted to,  or  having  possession  of  the  property  of,  such  de- 
fendants, or  either  of  them,  is  known  to  the  district  attorney 
or  marshal,  such  officer  shall  see  that  personal  notice  of  the 
attachment  is  served  upon  such  person,  but  the  want  of  such 
notice  shall  not  invalidate  the  attachment."  (1  Fed.  Stats. 
.Ann.,  2d  ed.,  p.  485;  3  U.  S.  Comp.  Stats.  1916,  §  1556.) 

§  502.     Same — Discharge  of  Warrant  on  Giving  Bond   Under 
§  931,  Rev.  Stats. 

§  931,  Rev.  Stats.  "Upon  application  of  the  party  whose 
property  has  been  attached,  the  court,  or  any  judge  thereof, 
may  discharge  the  warrant  of  attachment  as  to  the  property 
of  the  applicant,  provided  such  applicant  shall  execute  to  the 
United  States  a  good  and  sufficient  penal  bond,  in  double  the 
value  of  the  property  attached,  to  be  approved  by  a  judge 
of  the  court,  and  with  condition  for  the  return  of  said  prop- 
erty, or  to  answer  any  judgment  which  may  be  rendered  by 
the  court  in  the  premises."  (1  Fed.  Stats.  Ann.,  2d  ed., 
p.  485;  3  U.  S.  Comp.  Stats.  1916,  §  1557.) 

§  503.     Same — Adoption  of  State  Attachment  Laws  and  Former 
Practice  not  Affected  by  Postal  Attachment  Laws. 

§.955,  Rev.  Stats.  "Nothing  contained  in  the  preceding 
eight  sections  shall  be  construed  to  limit  or  abridge,  in  any 
manner,  such  rights  of  the  United  States  as  have  accrued  or 


§§  504-507,  Ch.  17     MANUAL  OF  FEDERAL  PROCEDURE. 

• 

,  been  allowed  in  any  district  under  the  former  practice  of,  or 
the  adoption  of  state  laws  by,  the  United  States  courts." 
(1  Fed.  Stats.  Ann.,  2d  ed.,  p.  485;  3  U.  S.  Comp.  Stats.  1916, 
§  1558.) 

§  504.  Garnishment — General  Statement.  Under  §  915,  Rev. 
Stats.,  quoted  in  §  480  supra,  garnishment  proceedings  and  the 
rights  and  liabilities  thereunder  as  prescribed  by  state  laws  may 
be  adopted  by  the  federal  courts.36 

Thus  the  effect  of  garnishment  (§  505  below) ;  a  notice  of  gar- 
nishment (§  506  below)  ;  the  persons  and  property  subject  to  gar- 
nishment (§  507  below)  ;  the  raising  of  the  issue  by  the  garnishee 
(§  508  below) ;  and  the  judgment  against  the  garnishee  (§  509 
below) ;  all  conform  to  the  state  practice. 

§  505.  Effect  of  Garnishment.  A  garnishee  may  not  be  placed 
in  any  worse  condition  than  he  would  if  defendant  were  prose- 
cuting the  claim  against  him,  but  otherwise  he  takes  the  place 
of  the  judgment  debtor  in  relation  to  the  attaching  creditor.37 

§  506.  Notice  of  Garnishment.  The  state  law  governs  the 
sufficiency  of  the  notice  served  on  the  garnishee.3* 

§  507.  Persons  and  Property  Subject  to  Garnishment.  The 
person^  who  may  be  garnished  and  the  kinds  of  property  for 
which  they  must  answer  are  governed  by  state  laws.39 

A  debtor  under  a  judgment  in  a  federal  court  cannot  be  sub- 
jected to  garnishment  in  the  state  court,  as  that  would  cause  a 
conflict  of  jurisdictions  greatly  inconvenient.40 

Debt  not  due  may  be  garnished.41 

36  Randolph  v.  Tandy,  98  Fed.  939,  39  C.  C.  A.  351;  Wile  v.  Cohn,  63  Fed. 
759. 

37  Fidelity  Trust  Co.  v.  New  York  Finance  Co.,  125  Fed.  275,  60  C.  C.  A. 
189;  Allen  v.  Aetna  Life  Ins.  Co.,  145  Fed.  881,  7  L.  R.  A.   (N.  S.)   958,  76 
C.  C.  A.  265. 

38  Logan  v.  Goodwin,  104  Fed.  490,  43  C.  C.  A.  658;  Wile  v.  Cohn,  63  Fed. 
759. 

39  Moscow  Hardware  Co.  v.  Colson,  158  Fed.  199;  Johnson  v.  Union  Pac. 
R.  Co.,  145  Fed.  249. 

40  Henry  v.  Gold  Park  Min.  Co.,  15  Fed.  649,  5  McCrary,  70. 

41  Smith  v.  Marker,  154  Fed.  838.  85  C.  C.  A.  372. 


257  ATTACHMENT  AND  GARNISHMENT.      Ch.  17,  §§  508-510 

§  508.  Issue  by  Garnishee.  The  practice  as  to  raising  issues 
by  a  garuishee  conforms  to  state  practice  except  as  to  appeal 
from  judgments  against  him.42 

§  509.  Judgments  Against  Gamishee.  The  entry  of  judg- 
ment against  the  garnishee  is  governed  by  state  laws,  and  on  ad- 
mission of  indebtedness  or  proof  that  he  is  not  indebted,  the  state 
law  giving  reasonable  attorneys'  fees,43  and  also  costs,44  is  en- 
forced. Where  the  state  law  authorizes  the  garnishee  to  deliver 
up  property  to  the  officer,  and  be  relieved  without  judgment,  the 
law  will  be  followed.45  Also,  where  the  state  law  requires  a  suit, 
instead  of  a  garnishment  process,  against  the  attached  debtor, 
that  law  will  be  followed.49 

§  510.  Garnishees  in  Suits  by  the  Government  Against  Cor- 
porations. 

§  935,  Rev.  Stats.  "In  any  suit  by  the  United  States  against 
a  corporation  for  the  recovery  of  money  upon  a  bill,  note,  or 
other  security,  the  debtors  of  the  corporation  may  be  sum- 
moned as  garnishees;  and  it  shall  be  the  duty  of  any  person 
so  summoned  to  appear  in  open  court  and  to  depose,  in  writ- 
ing, to  the  amount  which  he  was  indebted  to  the  said  corpora- 
tion at  the  time  of  the  service  of  the  summons  and  at  the  time 
of  making  such  deposition;  and  judgment  may  be  entered  in 
favor  of  the  United  States  for  the  sum  admitted  by  such  gar- 
nishee to  be  due  to  the  said  corporation,  in  the  same  manner 
as  if  it  had  been  due  to  the  United  States :  Provided,  That  no 
judgment  shall  be  entered  against  any  garnishee  until  after 
judgment  has  been  rendered  against  the  corporation  defend- 
ant to  the  said  action,  nor  until  the  sum  in  which  the  garnishee 
stands  indebted  is  actually  due."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  417;  3  U.  S.  Comp.  Stats.  1916,  §  1561.) 

42  Schuler  v.  Israel,  120  U.  S.  506,  30  L.  Ed.  707,  7  Sup.  Ct.  648. 

43  New  York  Finance  Co.  v.  Potter,  126  Fed.  432. 

44  Eome  R.  Co.  v.  Richmond  etc.  Co.,  60  Fed.  43. 

45  Allen-West  Commission  Co.  v.  Grumbles,  129  Fed.  288,  63  C.  C.  A.  401; 
Hatcher  v.  Hendrie  etc.  Supply  Co.,  133  Fed.  267,  68  C.  C.  A.  19. 

46  Brandenstein  v.  Helvetia  Swiss  Fire  Ins.  Co.,  159  Fed.  589;  also  Hel- 
vetia Swiss  Fire  Ins.  Co.  v.  Brandenstein,  168  Fed.  1020,  92  C.  C.  A.  614. 

Manual— 17 


§§  511-513,  Ch.  17      MANUAL  OF  FEDERAL  PROCEDURE.  258 

§  511.    Same — Issue  Tendered  When  Garnishee  Denies  Indebt- 
edness. 

§936,  Rev.  Stats.  '"When  any  person  summoned  as  gar- 
nishee  deposes  in  open  court  that  he  is  not,  and  was  not  at 
the  time  of  the  service  of  the  summons,  indebted  to  such  cor- 
poration, an  issue  may  be  tendered  by  the  United  States  upon 
such  demand,  and  if,  upon  the  trial  of  that  issue,  a  verdict 
is  rendered  against  the  garnishee,  judgment  shall  be  entered 
in  favor  of  the  United  States,  pursuant  to  such  verdict,  with 
costs  of  suit."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  417;  3  U.  S. 
Comp.  Stats.  1916,  §  1562.) 

§  512.     Same — Garnishee  in  Contempt  on  Failing  to  Appear. 

§  937,  Rev.  Stats.  "If  any  person  summoned  as  garnishee, 
as  aforesaid,  fails  to  appear  at  the  term  of  the  court  to  which 
he  is  summoned,  he  shall  be  subject  to  attachment  for  contempt 
of  the  court."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  417;  3  U.  S. 
Comp.  Stats.  1916,  §  1563.) 

§  513.    Claim  to  Property  in  Alien  Property  Custodian — Limi- 
tation of  Attachment  of. 

§  9,  Act  Oct.  6,  1917,  c.  .     "That  any  person,  not   an 

enemy,  or  ally  of  enemy,  claiming  any  interest,  right,  or 
title  in  any  money  or  other  property  which  may  have  been 
conveyed,  transferred,  assigned,  delivered,  or  paid  to  the  alien 
property  custodian  hereunder,  and  held  by  him  or  by  the 
Treasurer  of  the  United  States,  or  to  whom  any  debt  may  be 
owing  from  an  enemy,  or  ally  of  enemy,  whose  property  or 
any  part  thereof  shall  have  been  conveyed,  transferred,  as- 
oigned,  delivered,  or  paid  to  the  alien  property  custodian  here- 
nnder,  and  held  by  him  or  by  the  Treasurer  of  the  United 
States,  may  file  with  the  said  custodian  a  notice  of  his  claim 
under  oath  and  in  such  form  and  containing  such  particulars 
as  the  said  custodian  shall  require;  and  the  President,  if  ap- 
plication is  made  therefor  by  the  claimant,  may,  with  the 
assent  of  the  owner  of  said  property  and  of  all  persons  claim- 
ing any  right,  title,  or  interest  therein,  order  the  payment, 
conveyance,  transfer,  assignment  or  delivery  to  said  claimant 
of  the  money  or  other  property  so  held  by  the  alien  property 


259  ATTACHMENT  AND  GARNISHMENT.  Ch.  17,  §  513 

custodian  or  by  the  Treasurer  of  the  United  States  or  of  the 
interest  therein  to  which  the  President  shall  determine  said 
claimant  is  entitled :  Provided,  That  no  such  order  by  the  Presi- 
dent shall  bar  any  person  from  the  prosecution  of  any  suit 
at  law  or  in  equity  against  the  claimant  to  establish  any  right, 
title  or  interest  which  he  may  have  in  such  money  or  other 
property.  If  the  President  shall  not  so  order  within  sixty  days 
after  the  filing  of  such  application,  or  if  the  claimant  shall 
have  filed  the  notice  as  above  required  and  shall  have  made  no 
application  to- the  President,  said  claimant  may,  at  any  time 
before  the  expiration  of  six  months  after  the  end  of  the  war, 
institute  a  suit  in  equity  in  the  district  court  of  the  United 
States  for  the  district  in  which  such  claimant  resides,  or,  if  a 
corporation,  where  it  has  its  principal  place  of  business  (to 
which  suit  the  alien  property  custodian  or  the  Treasurer  of  the 
United  States,  as  the  case  may  be,  shall  be  made  a  party  de- 
fendant), to  establish  the  interest,  right,  title,  or  debt  so 
claimed,  and  if  suit  shall  be  so  instituted  then  the  money  or 
other  property  of  the  enemy,  or  ally  of  enemy,  against  whom 
such  interest,  right,  or  title  is  asserted,  or  debt  claimed,  shall 
be  retained  in  the  custody  of  the  alien  property  custodian,  or 
in  the  Treasury  of  the  United  States,  as  provided  in  this  Act, 
and  until  any  final  judgment  or  decree  which  shall  be  entered 
in  favor  of  the  claimant  shall  be  fully  satisfied  by  payment  or 
conveyance,  transfer,  assignment,  or  delivery  by  the  defendant 
or  by  the  alien  property  custodian  or  Treasurer  of  the  United 
States  on  order  of  the  court,  or  until  final  judgment  or  de- 
cree shall  be  entered  against  the  claimant,  or  suit  otherwise 
terminated. 

"Except  as  herein  provided,  the  money  or  other  property 
conveyed,  transferred,  assigned,  delivered  or  paid  to  the  alien 
property  custodian  shall  not  be  liable  to  lien,  attachment,  gar- 
nishment, trustee,  process,  or  execution,  or  subject  to  any 
order  or  decree  of  any  court. 

' '  This  section  shall  not  apply,  however,  to  money  paid  to  the 
alien  property  custodian  under  section  ten  hereof."  (Pam- 
phlet Supp.,  Fed.  Stats.  Ann.,  No.  12,  p.  131;  U.  S.  Comp. 
Stats.  1916,  §  31151/46;  244  Fed.,  Adv.  Sheets  No.  4,  p.  450. 


§§  520-521,  Ch.  18    MANUAL.  OF  FEDERAL  PROCEDURE.  260 


CHAPTER  18. 

PROCESS  L.AW  ACTIONS. 
SEO. 

520.  IH  General. 

521.  When  Suit  is  Begun. 

522.  The  Forms  of  Process  for  the  Commencement  of  Suits,  Except  as  to 

Signature,  Tcste  and  Sealing,  Conform  to  State  Practice. 

523.  Amendment  of  Process. 

524.  By  Whom  Process  is  Served. 

525.  Method  of  Service  of  Process. 

526.  Service  by  Publication  Under  §  57,  Jud.  Code. 

527.  Special  Appearance. 

528.  Suit  in  Forma  Pauperis. 

§  520.  In  General.  Under  §  721,  Eev.  Stats,  (infra,  §  230),  the 
federal  courts,  in  following  the  laws  of  the  several  states,  adopt 
the  state  statutes  of  limitations  except  where  otherwise  prescribed 
by  federal  statutes,  and  in  like  manner  follow  the  state  law  as  to 
what  is  the  beginning  of  a  suit. 

The  form  and  body  of  process  follow  the  state  practice  under  the 
conformity  act  §  914,  Rev.  Stats,  (infra,  §  450),  but  the  signatures, 
seal  and  teste  are  covered  by  §§  911,  912,  Rev.  Stats,  (infra,  §  522), 
and  amendment  of  process  by  §§  948,  954,  Rev.  Stats,  (infra,  §  523) . 
The  sufficiency  of  process,  because  relating  to  jurisdiction,  does  not 
conform  to  state  law,  but  is  governed  by  federal  decisions  (infra, 
§  525),  so  also  with  respect  to  special  appearances  (infra,  §  527). 
By  whom  process  is  served  is  provided  in  §§  787,  788,  Rev.  Stats. 
(infra,  §  524).  The  method  of  service,  except  substituted  service 
which  is  governed  by  §  57,  Jud.  Code  (infra,  §  526)  follows  the 
state  practice  (infra,  §  525).  A  suit  in  forma  pauperis  is  author- 
ized under  §  3,  Act  July  20,  1892,  chapter  209  (infra,  §  528). 

§  521.  When  Suit  is  Begun.  Under  §  721,  Rev.  Stats,  (infra, 
§  23Q)  relating  to  the  adoption  of  state  rules  of  decision,  the  fed- 
eral courts  follow  the  state  laws  of  limitation.  (Chapter  10,  infra, 


261  PROCESS  LAW  ACTIONS.  Ch.  18,  §  522 

Statutes  of  Limitations.)  So,  also,  a  state  ruling  that  the  filing  of 
a  petition  in  a  court  of  the  proper  jurisdiction  is  the  beginning  of 
the  suit  has  been  followed  by  the  federal  court.1  There  should  be, 
however,  the  issuance  of  process  and  a  bona  fide  effort  to  serve 
same.2 

§  522.  The  Forms  of  Process  for  the  Commencement  of  Suits, 
Except  as  to  Signature,  Teste  and  Sealing,  Conform  to  State  Prac- 
tice.3 Indorsements  upon  the  copy  of  summons  in  actions  for 
penalties  brought  by  the  United  States  thus  conform.4  If  the  fed- 
eral courts  have  adopted  by  rule  of  court  a  form  of  process  con- 
forming to  the  state  law,  a  subsequent  change  of  the  state  law 
would  have  to  be  adopted  to  render  improper  a  writ  under  the  old 
form.5 

§  911,  Rev.  Stats.  "All  writs  and  processes  issuing  from 
the  courts  of  the  United  States  shall  be  under  the  seal  of  the 
court  from  which  they  issue,  and  shall  be  signed  by  the  clerk 
thereof.  Those  issuing  from  the  Supreme  Court  or  a  circuit 
court  shall  bear  teste  of  the  Chief  Justice  of  the  United  States, 
or,  when  that  office  is  vacant,  of  the  associate  justice  next  in 
precedence,  and  those  issuing  from  a  district  court  shall  bear 
teste  of  the  judge,  or,  when  that  office  is  vacant,  of  the  clerk 
thereof.  The  seals  of  said  courts  shall  be  provided  at  the  ex- 
pense of  the  United  States. "  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  16 ; 
3  U.  S.  Comp.  Stats.  1916,  §  1534.) 

§  912,  Rev.  Stats.  "All  process  issued  from  the  courts  of 
the  United  States  shall  bear  teste  from  the  day  of  such  issue." 
(6  Fed.  Stats.  Ann.,  2d  ed.,  p.  912;  3  U.  S.  Comp.  Stats.  1916, 
§  1535.) 

1  International  Bank  &  Trust  Co.  v.  Scott    159  Fed.  60,  86  C.  C.  A.  248; 
Goldenberg  v.  Murphy,  108  U.  S.  162,  27  L.  Ed.  686,  2  Sup.  Ct.  388;  Re  Conna- 
way,  178,  U.  S.  430,  44  L.  Ed.  1137,  20  Sup.  Ct.  951;  Deepwater  R.  Co.  v. 
Western  Pocahontas  Coal  &  Lumber  Co.,  152  Fed.  824. 

2  United  States  v.  American  Lumber  Co.,  80  Fed.  309,  315;  Michigan  Ins. 
Bank  v.  Eldred,  130  U.  S.  697,  32  L.  Ed.  1082,  9  Sup.  Ct.  690. 

3  Gillum  v.  Stewart,  112  Fed.  30,  32;  Middleton  Paper  Co.  v.  Rock  River 
Paper  Co.,  19  Fed.  252;  Brown  v.  Pond,  5  Fed.  31;  Peaslee  v.  Haberstro,  15 
Blatchf.  472,  Fed.  Gas.  No.  10,884. 

4  United  States  v.  Rose,  14  Fed.  681;  Miller  v.  Gages,  4  McLean,  436,  Fed. 
Cas.  No.  9571. 

5  SBepard  v.  Adams,  168  U.  S.  624,  42  L.  Ed.  604,  18  Sup.  Ct  214;  Elson 
v.  Waterford,  135  Fed.  247. 


§  523,  Ch.  18  MANUAL  OF  FEDERAL  PROCEDURE.  262 

A  garnishment  notice  does  not  come  under  the  requirements  of 
§§  911  and  912,  Rev.  Stats.,  but  is  governed  by  §  915,  Eev.  Stats., 
and  if  it  conforms  under  the  later  section  to  the  state  court  proce- 
dure it  will  be  held  valid.6 

§  523.    Amendment  of  Process. 

§  948,  Rev.  Stats.  ' '  Any  circuit  or  district  court  may  at 
any  time,  in  its  discretion,  and  upon  such  terms  as  it  may  deem 
just,  allow  an  amendment  of  any  process  returnable  to  or  be- 
fore it,  where  the  defect  has  not  prejudiced,  and  the  amerid- 
•  ment  will  not  injure,  the  party  against  whom  such  process 
issues."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  90;  3  U.  S.  Comp. 
Stats.  1916,  §  1580.) 

§  954,  Rev.  Stats.  "No  summons,  writ,  declaration,  return, 
process,  judgment,  or  other  proceedings  in  civil  causes,  in  any 
court  of  the  Umted  States,  shall  be  abated,  arrested,  quashed, 
or  reversed  for  any  defect  or  want  of  form;  but  such  court 
shall  proceed  and  give  judgment  according  as  the  right  of  the 
cause  and  matter  in  law  shall  appear  to  it,  without  regarding 
any  such  defect,  or  want  of  form,  except  those  which,  in  cases 
of  demurrer,  the  party  demurring  specially  sets  down,  together 
with  his  demurrer,  as  the  cause  thereof;  and  such  court  shall 
amend  every  such  defect  and  want  of  form,  other  than  those 
which  the  party  demurring  so  expresses;  and  may  at  any  time 
permit  either  of  the  parties  to  amend  any  defect  in  the  process 
or  pleadings,  upon  such  conditions  as  it  shall,  in  its  discretion 
and  by  its  rules,  prescribe."  (6  Fed.  Stats.  Ann.,  2d  ed. 
p.  98;  3  U.  S.  Comp.  Stats.  1916,  §  1591.) 

Illustrations  of  amendments  under  the  foregoing  statutes  are  as 
follows:  a  district  court  summons  bearing  teste  of  chief  justice;7 
striking  out  of  a  summons  and  declaration  "administrator,  etc.," 
and  inserting  "executor,  etc."  ;8  altering  date  of  writs  made  return- 
able on  Sunday  or  another  wrong  day;9  changing  date  of  sum- 

6  Wile  v.  Cohn,  63  Fed.  759;  Middleton  Paper  Co.  y.  Rock  River  Paper 
Co.,  19  Fed.  252. 

7  United  States  v.  Turner,  50  Fed.  734. 

8  Randolph  v.  Barrett.  16  Pet.  (U.  S.)  13-8,  10  L.  Ed.  914. 

s>  Norton  v.  City  of  Dover,  14  Fed.  106;  Hampton  v.  Rouse,  15  Wall. 
(U.  S.)  684,  21  L.  Ed.  250;  Semmes  T.  United  States,  91  U.  S.  21,  23  L.  Ed. 
193. 


263  PROCESS  LAW  ACTIONS.          Ch.  18,  §  524 

mcfns ; 10  changing  name  of  plaintiff  in  summons  to  conform  to 
complaint.11 

Not  every  defect,  however,  will  be  allowed  to  be  amended.  A 
summons  not  signed  nor  under  seal  of  court  is  not  amendable,12  nor 
a  defective  indorsement  of  substantive  matter.13 

The  power  of  amendment  conferred  by  these  statutes  cannot  be 
diminished,  but  may  be  enlarged  by  state  practice  if  the  federal 
courts  adopt  the  state  rule.14 

§  524.    By  Whom  Process  is  Served. 

§  787,  Rev.  Stats.  "It  shall  be  the  duty  of  the  marshal  of 
each  district  to  attend  the  district  [and  circuit]  courts  when 
sitting  therein,  and  to  execute,  throughout  the  district,  all  law- 
ful precepts  directed  to  him,  and  issued  under  the  authority 
of  the  United  States ;  and  he  shall  have  power  to  command  all 
necessary  assistance  in  the  execution  of  his  duty."  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  764;  2  U.  S.  Comp.  Stats.  1916,  §  1311.) 

§  788,  Rev.  Stats.  "The  marshals  and  their  deputies  shall 
have,  in  each  state,  the  same  powers,  in  executing  the  laws  of 
the  United  States,  as  the  sheriffs  and  their  deputies  in  such 
state  may  have,  by  law,  in  executing  the  laws  thereof." 
(4  Fed.  Stats.  Ann.,  2d  ed.,  p.  768 ;  2  U.  S.  Comp.  Stats.  1916, 
§  1312.) 

The  marshal  is  the  executive  officer  of  the  court,  and  no  other 
person  is  authorized  to  serve  process  directed  to  him  except  him- 
self or  his  deputy.15  Where  a  state  law  permits  original  process 
to  be  served  by  a  private  person,  that  law  cannot  be  followed  in 
the  federal  court,  but  it  must  be  served  by  the  marshal  or  his 
deputy.16  Independently  of  state  laws,  the  marshals  of  the  United 
States  have  power  to  deputize  persons  for  the  service  of  writs.17 

10  Gilbert  v.  South  Carolina  etc.  Exp.  Co.,  113  Fed.  523. 

11  Gulf  etc.  R.  Co.  v.  James,  48  Fed.  148,  1  C.  C.  A.  53. 

12  Dwight  v.  Merritt,  4  Fed.  614,  18  Blatchf.  305. 
is  Brown  v.  Pond,. 5  Fed.  31. 

l*  Norton  v.  City  of  Dover,  14  Fed.  106. 

15  Schwabacker  v.  Reilly,  2  Dill.  127,  21  Fed.  Cas.  No.  12,501. 

16  Ibid.,  and  see  Shepard  v.  Adams,  168  U.  S.  624,  42  L.  Ed.  604,  18  Sup. 
Ct.  214. 

"  The  Tug  E.  W.  Gorgas,  10  Ben.  460,  8  Fed.  Cas.  No.  4585. 


§§  525-526,  Ch.  18     MANUAL  OF  FEDERAL  PROCEDURE.  264 

§  525.  Method  of  Service  of  Process.  The  federal  statutes  -do 
not  designate  how  service  shall  be  made  in  suits  at  law,  and  ac- 
cordingly the  method  of  service  conforms  to  state  practice  under 
§  914,  R«v.  Stats.  (§  450,  above),  except  substituted  service  under 
§  57,  Jud.  Code  (§  526,  below).18 

"The  laws  of  the  state  providing  for  the  service  of  process  of 
state  courts  in  actions  at  law  furnish  the  rules  for  procedure  in 
such  case  in  this  (federal)  court,  so  that  whatever  would  be  law- 
ful service  of  process  to  bring  a  party  into  court  if  the  action  were 
in  a  court  of  competent  jurisdiction  under  the  state  government  is 
lawful  and  sufficient  for  the  purpose  of  actions  commenced  in  this 
court."19 

Substituted  service  is  governed  by  §  57,  Jud.  Code,  as  set  out  in 
the  succeeding  section.  The  sufficiency  of  service  to  give  jurisdic- 
tion, as  in  all  other  jurisdictional  matters,  does  not  conform  to 
state  laws,  but  the  federal  courts  determine  for  themselves.20 

Service  on  corporations  conforms  as  a  general  rule  to  state  laws.21 

On  foreign  corporations  state  laws  will  generally  be  followed  if 
the  corporation  is  doing  business  in  the  state  of  the  forum.22 

§  526.  Service  by  Publication  Under  §  57,  Jud.  Code.  Service 
by  publication  does  not  come  within  the  above  rule.  State  statutes 
regulating  the  manner  of  bringing  in  absent  defendants  by  publi- 
cation are  not  applicable  to  the  federal  courts.  The  mode  provided 
by  §  57,  Jud.  Code,  for  acquiring  jurisdiction  over  an  absent  de- 
fendant by  publication  is  exclusive  of  every  other  mode,23  and  must 
be  strictly  followed.24  The  action  must  be  in  rem  for  the  statute 

18  Toledo   Computing   S.   Co.   v.    Computing   Scale   Co.,   142   Fed.   919,   74 
C.  C.  A.  89;  Amy  v.  Watertown,  130  U.  S.  302,  32  L.  Ed.  947,  9  Sup.  Ct.  530, 
Swarta  v.  Christie  Grain  and  Stock  Co.,  166  Fed.  338. 

19  Van  Dresser  v.  Oregon  E.  &  Nav.  Co.,  48  Fed.  202. 

20  Michigan  Trust  Co.  v.  Ferry,  175  Fed.  667,  99  C.  C.  A.  221;  Clark  v. 
Wells,  203  U.  S.  164,  51  L.  Ed.  138,  27  Sup.  Ct.  43. 

21  Higham  v.  Iowa  State  Travelers  Assn.,  183  Fed.  845. 

22  McCord  Lumber  Co.  v.  Doyle,  97  Fed.  22,  38  C.  C.-A.  34. 

23  Bracken  v.  Union  Pac.  R.  Co.,  56  Fed.  447,  5  C.  C.  A.  548;  New  York 
Life  Ins.  Co.  v.  Bangs,  103  U.  S.  435,  26  L.  Ed,  580. 

24  Jennings  v.  Johnson,  148  Fed.  337,  78  C.  C.  A.  329;  King  v.  Davis,  137 
Fed.  198,  207. 


265  PROCESS  LAW  ACTIONS.          Ch.  18,  §  526 

to  apply.25    Attachment  cannot  be  made  a  basis  for  substituted  ser- 
vice in  the  federal  courts  (§  483,  infra}. 

§  57,  Jud.  Code  (Re-enacting  §  8,  Act  March  3, 1875,  c.  137}. 
"When  in  any  suit  commenced  in  any  district  court  of  the 
United  States  to  enforce  any  legal  or  equitable  lien  or  cloud 
upon  or  claim  to,  or  to  remove  any  encumbrance  or  lien  upon 
the  title  to  real  or  personal  property  within  the  district  where 
such  suit  is  brought,  one  or  more  of  the  defendants  therein  shall 
not  be  an  inhabitant  of  or  found  within  the  said  district,  or 
shall  not  voluntarily  appear  thereto,  it  shall  be  lawful  for  the 
court  to  make  an  order  directing  such  absent  defendant  or  de- 
fendants to  appear,  plead,  answer,  or  demur  by  a  day  certain  to 
be  designated,  which  order  shall  be  served  on  such  absent  de- 
fendant or  defendants,  if  practicable,  wherever  found,  and  also 
upon  the  person  or  persons  in  possession  or  charge  of  said 
property,  if  any  there  be ;  or  where  such  personal  service  upon 
such  absent  defendant  or  defendants  is  not  practicable,  such 
order  shall  be  published  in  such  manner  as  the  court  may 
direct,  not  less  than  once  a  week  for  six  consecutive  weeks. 
In  case  such  absent  defendant  shall  not  appear,  plead,  an- 
swer, or  demur  within  the  time  so  limited,  or  within  some  fur- 
ther time,  to  be  allowed  by  the  court,  in  its  discretion,  and 
upon  proof  of  the  service  or  publication  of  said  order  and  of 
the  performance  of  the  directions  contained  in  the  same,  it 
shall  be  lawful  for  the  court  to  entertain  jurisdiction,  and  pro- 
ceed to  the  hearing  and  adjudication  of  such  suit  in  the  same 
manner  as  if  such  absent  defendant  had  been  served  with 
process  within  the  said  district ;  but  said  adjudication  shall,  as 
regards  said  absent  defendant  or  defendants  without  appear- 
ance, affect  only  the  property  which  shall  have  been  the  sub- 
ject of  the  suit  and  under  the  jurisdiction  of  the  court  therein, 
within  such  district ;  and  when  a  part  of  the  said  real  or  per- 
sonal property  against  which  such  proceedings  shall  be  taken 
shall  be  within  another  district,  but  within  the  same  state,  such 
suit  may  be  brought  in  either  district  in  said  state :  Provided, 
Jwivever,  That  any  defendant  or  defendants  not  actually  per- 
sonally notified  as  above  provided  may,  at  any  time  within  one 
year  after  final  judgment  in  any  suit  mentioned  in  this  section, 
enter  his  appearance  in  said  suit  in  said  district  court,  and 

25  Jonos  v.  Gould,  141  Fed.   698;  and,  also,  Jones  v.  Gould,  149  Fed.  153, 
80  C.  C.  A.  1. 


§§  527-528,  Ch.  18     MANUAL,  OF  FEDERAL  PROCEDURE.  266 

thereupon  the  said  court  shall  make  an  order  setting  aside  the 
judgment  therein  and  permitting  said  defendant  or  defendants 
to  plead  therein  on  payment  by  him  or  them  of  such  costs  as  the 
court  shall  deem  just;  and  thereupon  said  suit  shall  be  pro- 
ceeded with  to  final  judgment  according  to  law."  (36  Stats. 
1102 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  525 ;  1  U.  S.  Comp.  Stats. 
1916,  §  1039;  Foster's  Federal  Practice,  5th  ed.,  pp.  185,  599; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  48,  49,  102,  103,  237, 
336,  337.) 

§  527.  Special  Appearance.  A  special  appearance  is  for  the 
sole  purpose  of  attacking  the  jurisdiction  of  the  court.  The  fed- 
eral courts,  being  courts  of  limited  jurisdiction,  encourage  special 
appearances,  and  will  not,  therefore,  give  such  an  appearance  the 
force  and  effect  of  a  general  appearance  though  that  may  be  the 
effect  of  state  laws.28 

§  528.    Suit  in  Forma  Pauperis. 

§  3,  Act  July  20,  1892,  c.  209.  "The  officers  of  such  court 
shall  issue,  serve  all  process,  and  perform  all  duties  in  such 
cases,  and  witnesses  shall  attend  as  in  other  cases,  and  the 
plaintiff  shall  have  the  same  remedies  as  are  provided  by  law 
in  other  cases." 27  (27  Stats.  252 ;  2  Fed.  Stats.  Ann.,  2d  ed., 
p.  651 ;  3  U.  S.  Comp.  Stats.  1916,  §  1628.) 

26  Southern  P.  Co.  v.  Denton,  146  U.  S.  208,  36  L.  Ed.  945,  13  Sup.  Ct.  44. 

27  Boyle   v.   Great   Northern   K.   Co.,   63  Fed.   539;    Donovan   v.   Salem   & 
P.   Nav.   Co.,   134  Ted.   317;   Taylor  v.   Adams   Ex  p.   Co.,   164   Fed.   616,   90 
C.  C.  A.  526;  Columb  v.  Webster  Mfg.  Co.,  76  Fed.  198;  Gallaway  v.  State 
Nat.  Bank  of  Ft.  Worth,  186  U.  S.  177,  46  L.  Ed.  1111,  22  Sup.  Ct.  811. 


2G7  DEFENSIVE  PLEADING  LAW  ACTIONS.       (Jh.  1(J;  $sj  540-541 


CHAPTER  19. 

DEFENSIVE  PLEADING  LAW  ACTIQNa 

SEO. 

540.  In  General. 

541.  Time  and  Order  of  Pleading  Conform  to  State  Lawa. 

542.  Default  Judgment. 

543.  Forms  of  Pleadings  Conform  to  State  Practice. 

544.  Sufficiency,  Scope  and  Manner  of  Pleading  Conform  to  State  Laws. 

545.  Equitable  Defenses  to  an  Action  at  Law. 

546.  Amendment  of  Pleading. 

§  540.  In  General.  The  time  for  pleading,  unless  special  rules 
determine  otherwise,  follows  state  practice  (§  541,  below). 

Under  §  918,  Rev.  Stats.,  the  district  courts  may  make  rules  for 
entering  judgments  by  default,  and  under  §  961,  Rev.  Stats.,  provi- 
sion is  made  for  judgment  by  default  in  suits  by  the  government  on 
bonds.  Defaults  may,  however,  follow  state  practice  (§  542, 
below). 

The  form  of  pleading  is  that  provided  by  the  state  law  wherein 
the  district  lies  (§  543,  below). 

The  sufficiency  and  scope  of  the  pleading  is  governed  by  state 
laws  (§  544,  below). 

Equitable  defenses  to  an  action  at  law  are  now  permitted  under 
§  274b,  Jud.  Code,  added  by  amendment  Act  March  3,  1915,  c.  90 
(§545,  below). 

Amendment  of  pleading  is  under  §§  918,  954,  Rev.  Stats.,  (§§  542, 
546,  below). 

§  541.  Time  and  Order  of  Pleading  Conform  to  State  Laws. 
The  state  statutes  and  practice  are  followed  as  to  the  time  for 
pleading.1 

i  Werthein  v.  Continental  By.  ft  T.  Co.,  11  Fed.  689,  20  Blatchf.  508; 
Eicard  v.  New  Providence  Tp.,  5  Fed.  433;  Phenix  Ins.  Co.  v.  Charleston 
Bridge  Co  65  Fed.  628,  13  C.  C.  A.  58. 


§  542,  Ch.  19  MANUAL   OF   FEDERAL   PROCEDURE.  268 

Under  §  914,  Rev.  Stats.,  the  district  courts  of  the  United  States 
are  authorized  to  follow  the  practice  of  the  courts  of  the  state  in 
regard  to  the  order  of  pleading,  including  the  manner  in  which 
objections  may  be  taken  to  the  jurisdiction  and  the  question  as 
to  whether  objections  to  jurisdiction  and  defenses  on  the  merits 
should  be  pleaded  successively  or  together.2  Thus,  the  state  laws 
have  been  followed  as  to  the  order  of  filing  pleas  in  abatement.3 

§  542.    Default  Judgment. 

§  918,  Rev.  Stats.  "...  District  courts  may,  from  time  to 
time,  and  in  any  manner  not  inconsistent  with  any  law  of  the 
United  States,  ...  make  rules  and  orders  directing  .  .  .  the 
entering  and  making  of  judgments  by  default.  ..."  (6  Fed. 
Stats.  Ann.,  2d  ed.,  p.  77;  3  U.  S.  Comp.  Stats.  1916,  §  1544.) 

§  961,  Rev.  Stats.  ' '  In  all  suits  brought  to  recover  the  for- 
feiture annexed  to  any  articles  of  agreement,  covenant,  bond, 
or  other  specialty,  where  the  forfeiture,  breach,  or  nonper- 
formance  appears  by  the  default  or  confession  of  the  defend- 
ant, or  upon  demurrer,  the  court  shall  render  judgment  for  the 
plaintiff  to  recover  so  much  as  is  due  according  to  equity.  And 
when  the  sum  for  which  judgment  should  be  rendered  is  un- 
certain, it  shall,  if  either  of  the  parties  request  it,  be  assessed 
by  a  jury."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  117 ;  3  U.  S.  Comp. 
Stats.  1916,  §  1599,  .p.  3205.) 

The  state  statute  and  practice  for  setting  aside  judgment  by  de- 
fault has  been  followed.4 

If  the  defendant  fails  to  make  an  appearance  within  the  time 
allowed  for  making  an  appearance  under  the  state  statutes,  it  would 
seem  that  the  plaintiff  might  have  a  judgment  entered  by  default 
in  conformity  therewith,  under  the  rule  that  state  laws  govern  as 
to  time  within  which  to  plead. 

2  Southern  Pac.  Co.  v.  Denton,  146  U.  ,S.  209,  36  L.  Ed.  945,  13  Sup.  Ct. 
44. 

3  Tennis  Bros.  Co.  v.  Wetzel  &  T.  R.  Co.,  140  Fed.  193;  Id.,  145  Fed.  458, 
7  Ann.  Cas.  426,  75  C.  C.  A.  266;  Derk  P.  Yonkerman  Co.  v.  Chas.  H.  Fuller's 
Advertising  Agency,  135  Fed.  613. 

4  Brown  v.  Philadelphia  etc.  R.  Co.,  9  Fed._183;  Republic  Ins.  Co.  v.  Will 
iams,  3  Biss.  370,  Fed.  Cas.  No.  11,707. 


269  DEFENSIVE  PLEADING  LAW  ACTIONS.       Ch.  19,  §§  543-544 

As  to  what  constitutes  a  sufficient  appearance  to  save  from  de- 
fault, the  state  laws  govern.  Thus,  in  Illinois  a  motion  to  quash 
a  service  of  summons  was  held  to  be  sufficient  appearance,5  and  in 
Nebraska  a  motion  for  security  for  costs  was  sufficient  to  save  from 
default.8  It  would  not  be  safe  in  California  to  rely  on  any  such 
pleadings  under  the  California  law  requiring  the  defendant  to 
either  demur  or  answer  within  the  time  allowed  to  plead. 

§  543.  Forms  of  Pleadings  Conform  to  State  Practice.  The 
form  of  defensive  pleading  is  that  existing  in  the  state -001111,  of 
the  forum,  whether  by  plea,  answer,  demurrer,  or  other  form  of 
defensive  pleading.7 

Thus  a  state  rule  allowing  a  plea  in  abatement  to  the  « jurisdic- 
tion and  on  the  merits  to  be  set  up  in  the  answer  may  be  followed 
in  the  federal  courts.8 

So,  also,  the  verification  of  pleadings  is  governed  by  state  laws 
for  similar  cases  in  the  federal  courts.9 

§  544.  Sufficiency,  Scope  and  Manner  of  Pleading  Conform  to 
State  Laws.  The  sufficiency  and  scope  of  pleadings  in  actions  at 
law  are  matters  in  which  the  district  courts  will  conform  to  the 
practice  of  the  courts  of  record  of  the  states  in  which  they  are 
held.10 

Thus  a  state  law  requiring  a  plea  of  res  judicata  to  be  specially 
pleaded  was  followed  in  the  federal  court,11  and  a  state  law  giving 
effect  to  general  issue  was  followed  by  the  federal  courts.12  The 
right  to  plead  a  setoff  or  counterclaim  when  not  equitable  in  char- 
acter will  be  controlled  by  the  state  practice.13 

5  Wall  v.  Chesapeake  etc.  B.  Co.,  95  Fed.  398,  37  C.  C.  A.  129. 

6  Schofield  v.  Palmer,  137  Fed.  754. 

7  Roberts  v.  Lewis,  144  U.  S.  656,  36  L.  Ed.  582,  12  Sup.  Ct.  781. 

8  Draper  v.  Town  of  Springport,  21  Blatchf.  240,  15  Fed.  328. 

»  St.  Louis  etc.  R.  Co.  v.  Knight,  122  U.  S.  96,  30  L.  Ed.  1083,  7  Sup.  Ct. 
1132;  County  of  Rails  v.  Douglass,  105  U.  S.  728,  26  L.  Ed.  957;  Cottier  v. 
Stimson,  9  Sawy.  435,  18  Fed.  689. 

10  Glenn  v.  Sumner,  132  U.  S.  156,  33  L.  Ed.  301,  10  Sup.  Ct.  41. 

11  Preferred  Ace.  Ins.  Co.  v.  Barker,  93  Fed.  158,  35  C.  C.  A.  250. 

12  Hodges  v.  Easton,  106  U.  S.  410,  27  L.  Ed.  170,  1  Sup.  Ct.  307;  Burley 
v.  German  Am.  Bank.  Ill  U.  S.  221,  28  L.  Ed.  407,  4  Sup.  Ct.  341. 

13  Groton  Bridge  &  Mfg.  Co.  v.  American  Bridge  Co.,  151  Fed.  871,  879. 


§  545,  Ch.  19  MANUAL   OF   FEDERAL   PROCEDURE.  270 

Questions  of  law  may  be  raised  by  motion  where  state  law  per- 
mits. So,  also,  state  rules  as  to  demurrers  are  followed  in  the  fed- 
eral courts.14  So,  also,  the  state  pleading  as  to  the  filing  of  a  repli- 
cation or  making  an  issue  without  one  will  be  followed  in  the 
federal  courts.15 

Amendments,  however,  are  governed  by  §  954,  Rev.  Stats.,  §  523, 
infra) . 

§  545..   Equitable  Defenses  to  an  Action  at  Law. 

§  274b,  Jud.  Code,  by  Amendment  Act  March  3,  1915,  c.  90. 
"That  in  all  actions  at  law  equitable  defenses  may  be  inter- 
posed by  answer,  plea,  or  replication  without  the  necessity  of 
filing  a  bill  on  the  equity  side  of  the  court.  The  defendant 
shall  have  the  same  rights  in  such  case  as  if  he  had  filed  a  bill 
embodying  the  defense  of  seeking  the  relief  prayed  for  in  such 
answer  or  plea.  Equitable  relief  respecting  the  subject  mat- 
ter of  the  suit  may  thus  be  obtained  by  answer  or  plea.  In  case 
affirmative  relief  is  prayed  in  such  answer  or  plea,  the  plain- 
tiff shall  file  a  replication.  Review  of  the  judgment  or  decree 
entered  in  such  case  shall  be  regulated  by  rule  of  court. 
Whether  such  review  be  sought  by  writ  of  error  or  by  appeal 
the  appellate  court  shall  have  full  power  to  render  such  judg- 
ment upon  the  records  as  law  and  justice  shall  require." 
(38  Stats.  956 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p  1061 ;  2  U  S.  Comp. 
Stats.  1916,  §  1251b,  p.  2023;  United  States  v.  Richardson  (4th 
Cir.),  223  Fed.  1010,  139  C.^C.  A.  386;  Burrough's  Adding 
Machine  Co.  v.  Scandinavian-American  Bank  (W.  D.  Wash.), 
239  Fed.  179;  Illinois  Surety  Co.  v.  United  States  (7th  Cir.), 
226  Fed.  665,  141  C.  C.  A.  421.) 

Act  June  1, 1874,  c.  200.  "When  an  occupant  of  land,  hav- 
ing color  of  title,  in  good  faith  has  made  valuable  improve- 
ments thereon,  and  is,  in  the  proper  action,  found  not  to  be  the 
rightful  owner  thereof,  such  occupant  shall  be  entitled  in  the 
federal  courts  to  all  the  rights  and  remedies,  and,  upon  insti- 
tuting the  proper  proceedings,  such  relief  as  may  be  given  or 
secured  to  him  by  the  statutes  of  the  state  or  territory  where 
the  land  lies,  although  the  title  of  the  plaintiff  in  the  action 

U  Sommer  v.  Carbon  Hill  Coal  Co.,  89  Fed.  54,  60,  32  C.  C.  A.  156;  Nor- 
folk &  P.  Traction  Co.  v.  Eephan,  188  Fed.  276,  110  C.  C.  A.  254. 
15  Stratton  v.  Essex  Co.  Park  Comm.,  164  Fed.  901. 


271  DEFENSIVE  PLEADING   LAW    ACTIONS.         Ch.  19,  §  546 

may  have  been  granted  by  the  United  States  after  said  im- 
provements were  so  made."  (18  Stats.  522;  Fed.  Stats.  Ann., 
2d  ed.,  title  "Public  Lands";  3  U.  S.  Comp.  Stats.  1916, 
§  1541.) 

§  546.  Amendment  of  Pleading.  Section  918,  Rev.  Stats.,  per- 
mits the  federal  courts  to  make  rules  relating  to  "the  filing  of 
pleadings,  taking  of  rules,  .  .  .  and  otherwise  regulate  their  own 
practice"  (§542,  above)  ;  and  §  954,  Rev.  Stats.,  permits  the  court 
to  amend  defects  and  want  of  form  "in  the  process  or  pleadings, 
upon  such  conditions  as  it  shall,  in  its  discretion  and  by  its  rules, 
prescribe"  (§  523,  above).  These  sections  govern  the  matter  of 
amendment  of  pleadings  in  the  federal  court,  except  in  so  far  as 
state  rules  and  practice  may  be  adopted  which  are  not  inconsistent 
with  the  federal  rules. 

In  many  cases  amendments  of  pleadings  have  been  allowed  in 
conformity  with  state  practice,  and  in  many  others  they  have  been 
refused.  The  matter  is  entirely  within  the  discretion  of  the  court, 
and  not  reviewable  except  when  there  has  been  a  gross  abuse  of 
discretion.16 

l«  Lange  v.  Union  P.  B.  Co.,  126  Ted.  338,  340,  62  C.  C.  A..  48. 


§§  560-561,  Ch.  20     MANUAL.  OF  FJSDERAL  taoCKuuRE.  272 


CHAPTER  20. 


SEC. 

560.  Continuances — In  General. 

561.  Continuances  on  Death  of  Party. 

562.  Survival  of  Action. 

563.  Continuance  of  Suit  Against  Delinquent  in  Suit  for  Public  Moneys. 

564.  Continuances  of  Suits  Under  Postal  Laws. 

565.  Continuances  of  Suits  on  Debentures. 

566.  Continuances  of  Suits  Under  Tariff  I/awa. 

§  560.  Continuances — In  General.  This  matter  conforms  to 
state  practice  under  §  914,  Rev.  Stats.,  there  being  no  statutory 
provisions  except  those  set  out  in  the  following  sections,  561  to  566, 
.inclusive :  §  955,  Rev.  Stats.,  on  death  of  a  party ;  §  956,  Rev.  Stats., 
survival  of  action ;  §  957,  Rev.  Stats.,  suits  against  delinquents  for 
public  moneys ;  §  958,  Rev.  Stats.,  suits  under  postal  laws ;  §  959, 
Rev.  Stats.,  suits  on  debentures ;  §  960,  Rev.  Stats.,  suits  under 
tariff  laws. 

If  the  judge  is  unable  to  act,  the  marshal  or  clerk  may  adjourn 
court  under  §  12,  Jud.  Code  (Appendix,  post). 

If  the  office  of  judge  becomes  vacant,  the  clerk  may  continue 
pending  proceedings  under  §  22,  Jud.  Code  (Appendix,  post). 

Trials  commenced  in  a  district  court  may  be  concluded  in  a  new 
term  under  §  8,  Jud.  Code  (Appendix,  post). 

§  561.    Continuances  on  Death  of  Party. 

.§555,  Rev.  Stats.  "When  either  of  the  parties,  whether 
plaintiff  or  petitioner  or  defendant,  in  any  suit  in  any  court 
of  the  United  States,  dies  before  final  judgment,  the  executor 
or  administrator  of  such  deceased  party  may,  in  case  the  cause 
of  action  survives  by  law,  prosecute  or  defend  any  such  suit 
to  final  judgment.  The  defendant  shall  answer  accordingly; 
and  the  court  shall  hear  and  determine  the  cause  and  render 
judgment  for  or  'against  the  executor  or  administrator,  as  the 


• 

273  CONTINUANCES  AND  ADJOURNMENTS.      Ch.  20,  §§  562-563 

case  may  require.  And  if  such  executor  or  administrator, 
having  been  duly  served  with  a  scire  facias  from  the  office 
of  the  clerk  of  the  court  where  the  suit  is  depending,  twenty 
days  before  hand,  neglects  or  refuses  to  become  party  to  the 
suit,  the  court  may  render  judgment  against  the  estate  of  the 
deceased  party,  in  the  same  manner  as  if  the  executor  or  ad- 
ministrator had  voluntarily  made  himself  a  party.  The  execu- 
tor or  administrator  who  becomes  a  party,  as  aforesaid,  shall, 
upon  motion  to  the  court,  be  entitled  to  a  continuance  of  the 
suit  until  the  next  term  of  said  court."  (6  Fed.  Stats.  Ann., 
2d  ed.,  p.  Ill ;  3  U.  S.  Comp.  Stats.  1916,  §  1592.) 

§  562.    Survival  of  Action. 

§  956,  Rev.  Stats.  ' '  If  there  are  two  or  more  plaintiffs  or 
defendants,  in  a  suit  where  the  cause  of  action  survives  to  the 
plaintiff  or  against  the  surviving  defendant,  and  one  or  more 
of  them  dies,  the  writ  or  action  shall  not  be  thereby  abated; 
but,  such  death  being  suggested  upon  the  record,  the  action 
shall  proceed  at  the  suit  of  the  surviving  plaintiff  against  the 
surviving  defendant."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  115; 
3  U.  S.  Comp.  Stats.  1916,  §  1593.) 

§  563.    Continuance  of  Suit  Against  Delinquent  in  Suit  for 
Public  Moneys. 

§557,  Rev.  Stats.  "When  suit  is  brought  by  the  United 
States  against  any  revenue  officer  or  other  person  accountable 
for  public  money,  who  neglects  or  refuses  to  pay  into  the 
Treasury  the  sum  or  balance  reported  to  be  due  to  the  United 
States,  upon  the  adjustment  of  his  account  it  shall  be  the  duty 
of  the  court  to  grant  judgment  at  the  return  term,  upon  mo- 
tion, unless  the  defendant  in  open  court  (the  United  States 
attorney  being  present)  makes  and  subscribes  an  oath  that  he 
is  equitably  entitled  to  credits  which  had  been,  previous  to  the 
commencement  of  the  suit,  submitted  to  the  accounting  officers 
of  the  Treasury,  and  rejected ;  specifying  in  the  affidavit  each 
particular  claim  so  rejected,  and  that  he  cannot  then  safely 
come  to  trial.  If  the  court,  when  such  oath  is  made,  sub- 
scribed, and  filed,  is  thereupon  satisfied,  a  continuance  until 
the  next  succeeding  term  may  be  granted.  Such  continuance 

Manual — 18 


• 
§§  561-566,  Ch.  20    MANUAL  OP  FEDERAL  PROCEDURE.  274 

may  also  be  granted  when  the  suit  is  brought  upon  a  bond  or 
other  sealed  instrument,  and  the  defendant  pleads  non  est  fac- 
tum,  or  makes  a  motion  to  the  court,  verifying  such  plea  or 
motion  by  his  oath,  and  the  court  thereupon  requires  the  pro- 
duction of  the  original  bond,  contract,  or  other  paper  certified 
in  the  affidavit.  And  no  continuance  shall  be  granted  except 
as  herein  provided."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  215; 
3  U.  S.  Comp.  Stats.  1916,.  §  1595.) 

§  564.     Continuances  of  Suits  Under  Postal  Laws. 

§  958,  Rev.  Stats.  ' '  In  suits  arising  under  the  postal  laws 
the  court  shall  proceed  to  trial,  and  render  judgment  at  the 
return  term;  but  whenever  service  of  process  is  not  made  at 
least  twenty  days  before  the  return  day  of  such  term  the  de- 
fendant is  entitled  to  one  continuance,  if,  on  his  statement,  the 
court  deems  it  expedient ;  and  if  he  makes  affidavit  that  he  has 
a  claim  against  the  Postoffice  Department,  which  has  been  sub- 
mitted to  and  disallowed  by  the  sixth  auditor,  specifying  such 
claim  in  his  affidavit,  and  that  he  could  not  be  prepared  for 
trial  at  such  term  for  want  of  evidence,  the  court,  if  satisfied 
thereof,  may  grant  a  continuance  until  the  next  term." 
(6  Fed.  Stats.  Ann.,  2d  ed.,  p.  116;  3  U.  S.  Comp.  Stats.  1916, 
§  1596.) 

§  565.    Continuances  of  Suits  on  Debentures. 

§  959,  Rev.  Stats.  l '  In  all  suits  for  the  recovery  of  money 
upon  debentures  issued  by  the  collectors  of  customs,  under  any 
act  for  the  collection  of  duties,  it  shall  be  the  duty  of  the  court 
to  grant  ju'dgment  at  the  return  term,  unless  the  defendant,  in 
open  court,  exhibits  some  plea,  on  oath,  by  which  the  court  is 
satisfied  that  a  continuance  is  necessary  to  the  attainment  of 
justice;  in  which  case,  and  not  otherwise,  a  continuance  until 
the  next  term  may  be  granted."  (6  Fed.  Stats.  Ann.,  2d  ed., 
p.  116;  3  U.  S.  Comp.  Stats.  1916,  §  1597.) 

§  566.    Continuances  of  Suits  Under  Tariff  Laws. 

§  960,  Rev.  Stats.  "When  suit  is  brought  on  any  bond  for 
the  recovery  of  duties  due  to  the  United  States,  it  shall  be  the 
duty  of  the  court  to  grant  judgment  at  the  return  term,  upon 


275  CONTINUANCES  AND  ADJOURNMENTS.         Ch.  20,  §  566 

motion,  unless  the  defendant,  in  open  court  (the  United  States 
attorney  being  present),  makes  oath  that  an  error  has  been 
committed  in  the  liquidation  of  the  duties  demanded  upon  such 
bond,  specifying  the  errors  alleged  to  have  been  committed, 
and  that  the  same  have  been  notified  in  writing  to  the  collector 
of  the  district  before  the  said  return  term ;  whereupon  a  con- 
tinuance may  be  granted  until  the  next  term,  and  no  longer,  if 
the  court  is  satisfied  that  such  continuance  is  necessary  for  the 
attainment  of  justice."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  116; 
3  U.  S.  Comp.  Stats.  1916,  §  1598.} 


§§  570-571,  Ch.  21    MANUAL.  OF  FEDERAL  PROCEDURE,  27G 


CHAPTER  21. 

MISCELLANEOUS  INCIDENTAL  MATTERS. 

SEC. 

570.  Consolidation  of  Cases. 

571.  Discovery — At  Law. 

572.  Motion  and  Notice  to  Produce  Books  or  Papers  in  Civil  Suits  Under 

Customs  Revenue  Laws. 

573.  Dismissal  or  Nonsuit. 

574.  Verification — Oaths — Acknowledgments. 

§  570.    Consolidation  of  Cases. 

§  921,  Rev.  Stats.  "When  causes  of  a  like  nature  or  relative 
to  the  same  question  are  pending  before  a  court  of  the  United 
States,  or  of  any  territory,  the  court  may  make  such  orders 
and  rules  concerning  proceedings  therein  as  may  be  conform- 
able to  the  usages  of  courts  for  avoiding  unnecessary  costs  or 
delay  in  the  administration  of  justice,  and  may  consolidate  said 
causes  when  it  appears  reasonable  to  do  so."  (6  Fed. .Stats. 
Ann.,  2d  ed.,  p.  80;  3  U.  S.  Comp.  Stats.  1916,  §  1547.) 

§  920,  Rev.  Stats.  ' '  Whenever  two  or  more  things  belong- 
ing to  the  same  person  are  seized  for  an  alleged  violation  of 
the  revenue  laws,  the  whole  must  be  included  in  one  suit ;  and 
if  separate  actions  are  prosecuted  in  such  cases,  the  court  shall 
.  consolidate  them."  (6  Fed.  Stats.  Ann.,  2d  ed.,  title  "Judi- 
Comp.  Stats.  1916,  §  1546.) 

§  571.    Discovery — At  Law. 

§  724,  Rev.  Stats.  "In  the  trial  of  actions  at  law,  the  courts 
of  the  United  States  may,  on  motion  and  due  notice  thereof, 
require  the  parties  to  produce  books  or  writings  in  their  pos- 
session or  power  which  contain  evidence  pertinent  to  the  issue, 
in  cases  and  under  circumstances  where  they  might  be  com- 
pelled to  produce  the  same  by  the  ordinary  rules  or  proceed- 
ings in  chancery.  If  a  plaintiff  fails  to  comply  with  such 
order,  the  court  may,  on  motion,  give  the  like  judgment  for  the 
defendant  as  in  cases  of  nonsuit;  and  if  a  defendant  fails  to 


277  MISCELLANEOUS  INCIDENTAL  MATTERS.       Cll.  21,  §  572 

comply  with  such  order,  the  court  may,  on  motion,  give  judg- 
ment against  him  by  default."  (3  Fed.  Stats.  Ann.,  2d  ed.. 
p.  160;  3  U.  S.  Comp.  Stats.  1916,  §  1469.) 

§  572.    Motion  and  Notice  to  Produce  Books  or  Papers  in  Civil 
Suits  Under  Customs  Revenue  Laws. 

§  5,  Act  June  22,  1874,  c.  391.  "That  in  all  suits  and  pro- 
ceedings other  than  criminal,  arising  under  any  of  the  revenue 
laws  of  the  United  States,  the  attorney  representing  the  gov- 
ernment, whenever,  in  his  belief,  any  businass  book,  invoice, 
or  paper,  belonging  to  or  under  control  of  the  defendant 
or  claimant,  will  tend  to  prove  any  allegation  made  by  the 
United  States,  may  make  a  written  motion,  particularly  de- 
scribing such  book,  invoice,  or  paper,  and  setting  forth  the 
allegation  which  he  expects  to  prove ;  and  thereupon  the  court 
in  which  suit  or  proceeding  is  pending  may,  at  its  discretion, 
issue  a  notice  to  the  defendant  or  claimant  to  produce  such 
book,  invoice,  or  paper  in  court,  at  a  day  and  hour  to  be 
specified  in  said  notice,  which,  together  with  a  copy  of  said 
motion,  shall  be  served  formally  on  the  defendant  or  claim- 
ant by  the  United  States  marshal  by  delivering  to  him  a 
certified  copy  thereof,  or  otherwise  serving  the  same  as  original 
notices  of  suit  in  the  same  court  are  served;  and  if  the  de- 
fendant or  claimant  shall  fail  or  refuse  to  produce  such  book, 
invoice,  or  paper  in  obedience  to  such  notice,  the  allegations 
stated  in  the  said  motion  shall  be  taken  as  confessed  unless 
his  failure  or  refusal  to  produce  the  same  shall  be  explained 
to  the  satisfaction  of  the  court.  And  if  produced,  the  said 
attorney  shall  be  permitted,  under  the  direction  of  the  court, 
to  make  examination  (at  which  examination  the  defendant  or 
claimant,  or  his  agent,  may  be  present)  of  such  entries  in  said 
book,  invoice,  or  paper  as  relate  to  or  tend  to  prove  the  alle- 
gation aforesaid,  and  may  offer  the  same  in  evidence  on  behalf 
of  the  United  States.  But  the  owner  of  said  books  and  papers, 
his  agent  or  attorney,  shall  have,  subject  to  the  order  of  the 
court,  the  custody  of  them,  except  pending  their  examination 
in  court  as  aforesaid."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  224; 
6  U.  S.  Comp.  Stats.  1916,  §  5799.) 

See,  also,  other  statutes  of  a  somewhat  similar  nature  quoted 
above  in  §  354  et  seq.,  in  chapter  12  on  "Witnesses." 


§§  573-574,  Ch.  21     MANUAL  OP  FEDERAL  PROCEDURE.  278 

§  573.  Dismissal  or  Nonsuit.  Except  in  suits  lacking  a  ground 
of  federal  jurisdiction,  governed  by  §  37,  Jud.  Code,  set  out  in 
§  471,  above,  the  dismissal  by  plaintiff,  and  the  granting  of  a  non- 
suit, conform  to  state  practice,  there  being  no  statutory  provi- 
sions applicable.  (Central  Transp.  Co.  v.  Pullman  Palace  Car 
Co.,  139  U.  S.  24,  35  L.  Ed.  55,  11  Sup.  Ct.  478.) 

Thus  under  a  state  law  plaintiff  in  a  federal  suit  was  permitted 
to  dismiss,  without  prejudice,  before  final  submission  to  the  jury, 
although  the  judge  had  stated  that  he  would  sustain  a  motion 
to  direct  a  verdict  for  defendant.  (Chicago,  M.  &  St.  I*.  Ry.  Co. 
v.  Metalstaff,  101  Fed.  769,  41  C.  C.  A.  669.) 

See  chapter  55,  post. 

§  574.    Verification — Oaths — Acknowledgments. 

§  1778,  Rev.  Stats.  ' '  In  all  cases  in  which,  under  the  laws  of 
the  United  States,  oaths  or  acknowledgments  may  now  be  taken 
or  made  before  any  justice  of  the  peace  of  any  state  or  terri- 
tory, or  in  the  District  of  Columbia,  they  may  hereafter  be  also 
taken  or  made  by  or  before  any  notary  public  duly  appointed 
in  any  state,  district,  or  territory,  or  any  of  the.  commissioners 
of  the  circuit  courts,  and,  when  certified  under  the  hand  and 
official  seal  of  such  notary  or  commissioner,  shall  have  the 
same  force  and  effect  as  if  taken  or  made  by  or  before  such 
justice  of  the  peace."  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  772; 
4  U.  S.  Comp.  Stats.  1916,  §  3259.) 

See,  also,  §  359  above,  for  other  statutory  provisions  relative 
to  administration  of  oaths. 


279  TRIAL — LAW  ACTIONS.          Ch.  22,  §  580 


CHAPTER  22. 

TRIAL— LAW  ACTIONS. 

SEO. 

580.  In  General. 

581.  Method  of  Trial  Under  §  566,  Rev.  Stats. 

582.  Cases  to  Which  Provision  not  Applicable. 

583.  Constitutional  Jury — Twelve  Men. 

584.  Qualifications  and  Exemptions — In  General. 

585.  Same — Under  Civil  Bights  Acts. 

586.  Same — Penalty  for  Exclusion. 

587.  Exempt  After  Serving  Term  in  a  Year. 

588.  Jurors — From  Where  Drawn. 

589.  Impaneling  Jurors. 

590.  Venire — Issuance  and  Return. 

591.  Talesmen  for  Petit  Juries. 

592.  Special  Juries. 

593.  Challenges. 

594.  Trial  by  Judge. 

595.  Mode  of  Proof — Law  Actions. 

596.  The  Taking  of  Exceptions  Does  not  Conform  to  State  Practice. 

597.  Time  for  Excepting  to  Rulings. 

598.  Conduct  of  the  Trial. 

599.  Charge  to  the  Jury — Instructions. 

§  580.  In  General.  After  the  case  is  at  issue,  the  next  step 
is  the  production  of  proof  which  under  §  86l,  Rev.  Stats.  (§  595 
below),  must  be  in  open  court,  except  as  otherwise  specially  pro- 
vided. 

There  may  be  material  testimony  of  witnesses  who  cannot  be 
produced  in  open  court,  whose  testimony  should,  if  possible, 
be  obtained  by  depositions.  The  grounds  of  taking  these  deposi- 
tions are  set  out  in  §§  863  and  866,  Rev.  Stats.  The  methods  of 
taking  such  depositions  are  provided  in  §§  863  to  870,  Rev. 
Stats.,  inclusive,  and  may  be  according  to  state  practice  under  the 
Act  of  March  9,  1892,  c.  14,  27  Stats.  7.  The  statutory  provisions 
as  to  depositions  apply  alike  to  law  and  equity  causes,  and,  there- 
fore, have  not  been  treated  separately  for  each  kind  of  suit. 
The  subject  of  depositions  is  treated  in  chapter- 13,  above. 


§§  581-582,  Ch.  22     MANUAL  OP  FEDERAL,  PROCEDURE.  280 

Most  of  the  statutory  provisions  relating  to  evidence  and  wit- 
nesses in  like  manner  apply  alike  to  law  and  equity  cases,  and 
have  been  treated  under  the  general  headings  "Evidence,"  in 
chapter  11,  above,  and  "Witnesses,"  in  chapter  12,  above. 

This  chapter  deals  with  the  methods  of  trial,  mode  of  proof, 
and  conduct  of  the  trial  in  law  actions,  including  the  provisions 
relating  to  the  qualifications  and  exemptions  of  jurors,  the  selec- 
tion of  the  jury,  venire,  talesmen,  challenges,  etc.,  and  also 
respecting  the  charge  to  the  jury. 

The  jury's  verdict,  motion  for  new  trial,  and  bill  of  exceptions 
are  treated  in  the  following  chapter,  No.  23. 

§  581.    Method  of  Trial  Under  §  566,  Rev.  Stats. 

Part  §  566,  Rev.  Stats.  "The  trial  of  issues  of  fact  in  the 
district  courts,  in  all  causes  except  in  equity  and  cases  of 
admiralty  and  maritime  jurisdiction  and  except  as  other- 
wise provided  in  proceedings  in  bankruptcy,  shall  be  by 
jury.  ..."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  121;  3  U.  S. 
Comp.  Stats.  1916,  §  1583.) 

This  right  to  a  jury  trial  is  guaranteed  in  common-law  cases 
by  the  United  States  Constitution,  as  follows: 

Part  7th  Amendment  U.  S.  Constitution.  "In  suits  at 
common  law,  where  the  value  in  controversy  shall  ex- 
ceed twenty  dollars,  the  right  to  trial  by  jury  shall  be  pre- 
served. ..."  (11  U.  S.  Comp.  Stats.  1916,  §  14,401.) 

§582.  Cases  to  Which  Provision  not  Applicable.  This  pro- 
vision in  the  seventh  Amendment  refers  only  to  cases  at  common 
law  where  the  amount  in  controversy  exceeds  twenty  dollars. 

The  clause  does  not  prevent  a  waiver  of  trial  by  jury  in 
common-law  cases.1 

The  guaranty  of  trial  by  jury  refers  only  to  the  federal  and 
not  the  state  courts,  and  is  a  limitation  on  the  powers  of  the 
federal  government.2 

1  Parsons  v.  Armour,  3  Pet.  (U.  S.)  413,  425,  7  L.  Ed.  724. 

2  McBride  v.  Stradley,  103  Ind.  465,  2  N.  E.  358;   Seeley  v.  Bridgeport, 
53  Conn.  1,  22  Atl.  1017;  Livingston  v.  Moore,  7  Pet.   (U.  S.)    469,  8  L.  Ed. 
751;  Walker  v.  Sauvinet,  92  U.  S.  90,  92.  23  L.  Ed.  678;  Baylis  v.  Travelers' 
Tns.  Co.,  113  U.  S.  316,  321,  28  L.  Ed.  989,  5  Sup.  Ct.  494. 


281  TRIAL — LAW  ACTIONS.          Ch.  22,  §§  583-584 

It  applies  to  the  District  of  Columbia  and  to  the  organized 
territories  which  havo  been  brought  under  the  Constitution,  and 
to  their  legislative  and  judicial  officers  as  also  to  a  territorial 
governor,  and  to  tribunals  established  under  a  provisional  govern- 
ment in  territory  covered  by  the  Constitution,  but  not  to  con- 
sular courts.3 

The  constitutional  provision  does  not  apply  to  equity  cases,4 
nor  to  suits  in  admiralty.5  Section  566,  Rev.  Stats.,  especially 
excepts  those  kinds  of  causes.  The  constitutional  amendment 
does  not  apply  in  suits  against  the  United  States  in  the  court  of 
claims.8 

§  583.  Constitutional  Jury  —  Twelve  Men.  Trial  by  jury 
means  a  common-law  jury  of  twelve  men,  in  the  presence  of 
and  under  the  supervision  of  a  judge,  who  instructs  them  as  to 
the  law.7  A  territorial  law  permitting  a  verdict  by  any  number 
of  jurors  less  than  twelve  is  invalid.8 

§  584.    Qualifications  and  Exemptions — In  General. 

§  275,  Jud.  Code  (Drawn  from  §  800,  Rev.  Stats.}.  "Jurors 
to  serve  in  the  courts  of  the  United  States,  in  each  state  re- 
spectively, shall  have  the  same  qualifications,  subject  to  the 

*  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1,  43  L.  Ed.  873,  19  Sup.  Ct.  580; 
Walker  V.  New  Mexico  etc.  B.  B.  Co.,  165  U.  S.  593,  595,  41  L.  Ed.  837,  17 
Sup.  Ct.  421;  Thompson  v.  Utah,  170  U.  S.  343,  349,  42  L.  Ed.  1061,  18 
Sup.  Ct.  620;  Whallon  v.  Bancroft,  4  Minn.  109  (Gil.  70)  ;  Claim  of  Reside, 
9  Opinions  of  Atty.  Gen.  200;  Scott  v.  Billgerry,  40  Miss.  119;  Boss  v. 
Mclntyre,  140  U.  S.  453,  454,  35  L.  Ed.  581,  11  Sup.  Ct.  897. 

4  Barton  v.  Barbour,  104  U.  S.  126,  133,  26  L.  Ed.  672,  676;  Woodworth 
v.  Bogers,  3  Woodb.  &  M.  135,  Fed.  Cas.  No.  18,018,  2  Bobb.  Pat.  Cas.  625; 
Buford  v.  Holley,  28  Fed.  680;  Scott  v.  Billgerry,  40  Miss.  119;  Motte  v. 
Bennett,  2  Fish.  Pat.  Cas.  642,  Fed.  Cas.  No.  9884. 

6  The  Huntress,  2  Ware  (Dav.),  82,  89,  Fed.  Cas.  No.  6914;  Bains  v.  The 
James  and  Catherine,  Bald.  W.  544,  Fed.  Cas.  No.  756;  United   States  v. 
La  Vengeance,  3  Dall.  (U.  S.)  297,  1  L.  Ed.  610. 

e  McElrath  v.  United  States,  102  U.  S.  426,  440,  26  L.  Ed.  189,  192; 
Torrey  v.  United  States,  42  Fed.  207. 

7  Maxwell  v.  Dow,  176  U.  S.  581,  586,  44  L.  Ed.  599.  20  Sup.  Ct.  448,  494; 
Thompson  v.  Utah,  170  U.  S.  343,  42  L.  Ed.  1061,  18  Sup.  Ct.  620. 

8  American  Pub.  Co.  v.  Fisher,  166  U.  S.  464,  467,  41  L.  Ed.  1079,  17  SUP. 
Ct.  618;  Springville  City  v.  Thomas,  166  U.  S.  707,  708,  41  L.  Ed.  1172,  17 
Sup.  Ct.  717;  Kleinschmidt  v.  Dunphy,  1   Mont.  118;   Hawaii  v.  Mankichi, 
190  U.  S.  197,  47  L.  Ed.  1016,  23  Sup.'Ct.  787. 


§§  585-588,  Ch.  22    MANUAL  OP  FEDERAL  PROCEDURE.  282 

provisions  hereinafter  contained,  and  be  entitled  to  the  same 
exemptions,  as  jurors  of  the  highest  court  of  law  in  such  state 
may  have  and  be  entitled  to  at  the  time  when  such  jurors  for 
service  in  the  courts  of  the  United  States  are  summoned." 
(36  Stats.  1164;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1063;  2  U.  S. 
Comp.  Stats.  1916,  §  1252.) 

§  585.     Same — Under  Civil  Rights  Acts. 

§  278,  Jud.  Code  (Re-enacting  proviso,  §  2,  Act  June  30, 
1879,  c.  52}.  "No  citizen  possessing  all  other  qualifications 
which  are  or  may  be  prescribed  by  law  shall  be  disqualified  for 
services  as  grand  or  petit  juror  in  any  court  of  the  United 
States  on  account  of  race,  color,  or  previous  condition  of  servi- 
tude." (36  Stats.  1165;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1071; 
2  U.  S.  Comp.  State.  1916,  §  1255.) 

§  586.     Same — Penalty  for  Exclusion. 

Part  §4,  Act  March  1,  1875,  c.  114.  "Any  officer  or  other 
person  charged  with  any  duty  in  the  selection  or  summoning  of 
jurors,  who  shall  exclude  or  fail  to  summon  any  citizen,  for 
the  cause  aforesaid,  shall,  on  conviction  thereof,  be  deemed 
guilty  of  a  misdemeanor,  and  be  fined  not  more  than  five 
thousand  dollars."  (18  Stats.  336;  2  Fed.  Stats.  Ann.,  2d  ed., 
p.  143 ;  4  U.  S.  Comp.  Stats.  1916,  §  3929.) 

§  587.    "Exempt  After  Serving  Term  in  a  Year. 

§  286,  Jud.  Code  (Drawn  from  §  812,  Rev.  Stats.}.  "No  per- 
son shall  serve  as  a  petit  juror  in  any  district  court  more  than 
one  term  in  a  year;  and  it  shall  be  sufficient  cause  of  chal- 
lenge to  any  juror  called  to  be  sworn  in  any  case  that  he  has 
been  summoned  and  attended  said  court  as  a  juror  at  any 
term  of  said  court  held  within  one  year  prior  to  the  time  of 
such  challenge."  (36  Stats.  1166;  5  Fed.  State.  Ann.,  2d  ed., 
p.  1077 ;  2  U.  S.  Comp.  Stats.  1916,  §  1263.) 

§  588.    Jurors — From  Where  Drawn. 

§  577,  Jud.  Code  (Re-enacting  §  802,  Rev.  Stats.}.  "Jurors 
shall  be  returned  from  such  parts  of  the  district,  from  time 
to  time,  as  the  court  shall  direct,  so  as  to  he  most  favorable 


283  TRIAI^-LAW  ACTIONS.          Ch.  22,  §§  589  590 

to  an  impartial  trial,  and  so  as  not  to  incur  an  unnecessary 
expense,  or  unduly  burden  the  citizens  of  any  part  of  the 
district  with  such  service."  (36  Stats.  1164;  5  Fed.  Stats. 
Ann.,'2d  ed.,  p.  1070;  2  U.  S.  Comp.  Stats.  1916,  §  1254.) 

§  589.    Impaneling  Jurors. 

§  276,  Jud.  Code  (Re-enacting  Part  §  2,  Act  June  30,  1879, 
c.  52).  "All  such  jurors,  grand  and  petit,  including  those 
summoned  during  the  session  of  the  court,  shall  be  publicly 
drawn  from  a  box  containing,  at  the  time  of  each  drawing, 
the  names  of  not  less  than  three  hundred  persons,  possessing 
the  qualifications  prescribed  in  the  section  last  preceding,  which 
names  shall  have  been  placed  therein  by  the  clerk  of  such 
court  and  a  commissioner,  to  be  appointed  by  the  judge 
thereof,  or  by  the  judge  senior  in  commission  in  district  hav- 
ing more  than  one  judge,  which  commissioner  shall  be  a  citizen 
of  good  standing,  residing  in  the  district  in  which  such  court 
is  held,  and  a  well-known  member  of  the  principal  political 
party  in  the  district  in  which  the  court  is  held  opposing  that 
to  which  the  clerk  may  belong,  the  clerk  and  said  commis- 
sioner each  to  place  one  name  in  said  box  alternately,  without 
reference  to  party  affiliations,  until  the  whole  number  required 
shall  be  placed  therein."  (36  Stats.  1164;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  1066;  2  U.  S.  Comp.  Stats.  1916,  §1253;  Foster's 
Federal  Practice,  5th  ed.,  pp.  1471,  2378.) 

§  590.    Venire — Issuance  and  Return. 

§  279,  Jud.  Code  (Part  re-enacts  §  803,  Rev.  Stats.).  "Writs 
of  venire  facias,  when  directed  by  the  court,  shall  issue  from 
the  clerk's  office,  and  shall  be  served  and  returned  by  the 
marshal  in  person,  or  by  his  deputy;  or,  in  case  the  marshal 
or  his  deputy  is  not  an  indifferent  person,  or  is  interested 
in  the  event  of  the  cause,  by  such  fit  person  as  may  be  specially 
appointed  for  that  purpose  by  the  court,  who  shall  administer 
to  him  an  oath  that  he  will  truly  and  impartially  serve  and 
return  the  writ.  Any  person  named  in  such  writ  wlu>  resides 
elsewhere  than  at  the  place  at  which  the  court  is  held,  shall 
be  served  by  the  marshal  mailing  a  copy  thereof  to  such  per- 
son commanding  him  to  attend  as  a  juror  at  a  time  and  place 
designated  therein,  which  copy  shall  be  registered  and  de- 
posited in  the  postoffice  addressed  to  such  person  at  his  usual 


§§  591-593,  Ch.  22    MANUAL  OF  FEDERAL  PROCEDURE.  284 

postoffice  address.  And  the  receipt  of  the  person  so  addressed 
for  such  registered  copy  shall  be  regarded  as  personal  service 
of  such  writ  upon  such  person,  and  no  mileage  shall  he  al- 
lowed for  the  service  of  such  person.  The  postage  and  registry 
fee  shall  be  paid  by  the  marshal  and  allowed  him  in  the  settle- 
ment of  his  accounts."  (36  Stats.  1165;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  1072;  2  U.  S.  Comp.  Stats.  1916,  §1256;  Foster's 
Federal  Practice,  5th  ed.,  p.  1697.), 

§  591.    Talesmen  for  Petit  Juries. 

§  280,  Jud.  Code  (Re-enacting  §  804,  Eev.  Stats.}.  "When, 
from  challenges  or  otherwise,  there  is  not  a  petit  jury  to  de- 
termine any  civil  or  criminal  cause,  the  marshal  or  his  deputy 
shall,  by  order  of  the  court  in  which  such  defect  of  jurors 
happens,  return  jurymen  from  the  bystanders  sufficient  to 
complete  the  panel;  and  when  the  marshal  or  his  deputy  is 
disqualified  as  aforesaid,  jurors  may  be  so  returned  by  such 
disinterested  person  as  the  court  may  appoint,  and  such  per- 
son shall  be  sworn,  as  provided  in  the  preceding  section."  (36 
Stats.  1165 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1073 ;  2  U.  S.  Comp. 
Stats.  1916,  §  1257.1 

§  592.     Special  Juries. 

§281,  Jud.  Code  (Re-enacting  §805,  Rev.  Stats.).  "When 
special  juries  are  ordered  in  any  district  court,  they  shall 
be  returned  by  the  marshal  in  the  same  manner  and  form 
as  is  required  in  such  cases  by  the  laws  of  the  several  states." 
(36  Stats.  1167;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1074 ;  2  U.  S. 
Comp.  Stats.  1916,  §  1258.). 

§  593.    Challenges. 

Part  §287,  Jud.  Code  (Drawn  from  §819,  Rev.  Stats.). 
1  .  .  .  and  in  all  other  cases,  civil  and  criminal,  each  party 
shall  be  entitled  to  three  peremptory  challenges;  and  in  all 
cases  where  there  are  several  defendants  or  several  plaintiffs, 
the  parties  on  each  side  shall  be  deemed  a  single  party  for  the 
purposes  of  all  challenges  under  this  section.  All  challenges, 
whether  to  the  array  or  panel,  or  to  individual  jurors  for 
cause  or  favor,  shall  be  tried  by  the  court  without  the  aid 


285  TRIAL— LAW   ACTIONS.  Ch.  22,  §  591 

of  triers. "    (36  Stats.  1166 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1078 ; 
2  U.  S.  Comp.  Stats.  1916,  §  1264.) 

§  594.  Trial  by  Judge.  Although  §§  649  and  700,  Rev.  Stats., 
specifically  refer  to  trials  by  the  circuit  courts,  and  have  been 
held  to  apply  only  to  the  circuit  courts,  and  not  to  the  district 
courts,  nevertheless  the  new  Judicial  Code  specifically  provides 
for  imposing  the  powers  and  duties  of  the  circuit  courts  upon  the 
district  courts,  thus  allowing  a  waiver  of  jury  trial  and  a  trial 
by  the  judge.  His  findings  of  fact  would  be  equivalent  to  a 
verdict  of  a  jury  under  §§  649,  700,  1011,  Rev.  Stats.  (Porter  v. 
F.  M.  Davies  &  Co.  (8th  Cir.),  223  Fed.  465,  467, 140  C.  C.  A.  11.) 

§  291,  Jud.  Code  (New).  "Wherever,  in  any  law  not  em- 
braced within  this  act,  any  reference  is  made  to,  or  any  power 
or  duty  is  conferred  or  imposed  upon,  the  circuit  courts,  such 
reference  shall,  upon  the  taking  effect  of  this  act,  be  deemed 
and  held  to  refer  to,  and  to  confer  such  power  and  impose 
such  duty  upon,  the  district  courts."  (36  Stats.  1167;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  1083 ;  2  U.  S.  Comp.  Stats.  1916,  §  1268 ; 
Foster's  Federal  Practice,  5th  ed.,  p.  1559;  Ex  parte  United 
States,  226  U.  S.  420,  57  L.  Ed.  281 ;  33  Sup.  Ct.  170.) 

§  649,  Rev.  Stats.  "Issues  of  fact  in  civil  cases  in  any 
circuit  court  may  be  tried  and  determined  by  the  court, 
without  the  intervention  of  a  jury,  whenever  the  parties,  or 
their  attorneys  of  record,  file  with  the  clerk  a  stipulation  in 
writing  waiving  a  jury.  The  finding  of  the  court  upon  the 
facts,  which  may  be  either  general  or  special,  shall  have  the 
same  effect  as  the  verdict  of  a  jury."  (6  Fed.  Stats.  Ann., 
2d  ed.,  p.  130;  3  U.  S.  Comp.  Stats.  1916,  §  1587.) 

§  700,  Rev.  Stats.  "When  an  issue  of  fact  in  any  civil 
cause  in  a  circuit  court  is  tried  and  determined  by  the  court 
without  the  intervention  of  a  jury,  according  to  section  six 
hundred  and  forty-nine,  the  rulings  of  the  court  in  the  progress 
of  the  trial  of  the  cause,  if  excepted  to  at  the  time,  and  duly 
presented  by  a  bill  of  exceptions,  may  be  reviewed  by  the 
Supreme  Court  upon  a  writ  of  error  or  upon  appeal ;  and 
when  the  finding  is  special  the  review  may  extend  to  the  de- 
termination of  the  sufficiency  of  the  facts  found  to  support 
the  judgment."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  205;  3  U.  S. 
Comp.  Stats.  1916,  §166«,  p.  3350.) 


§§  595-596,  Ch.  22     MANUAL  OF  FEDERAL  PROCEDURE.  286 

§  595.    Mode  of  Proof — Law  Actions. 

§  861,  Rev.  Stats.  "The  mode  of  proof  in  the  trial  of  ac- 
tions at  common  law  shall  be  by  oral  testimony  and  by  ex- 
amination of  witnesses  in  open  court,  except  as  hereinafter 
provided."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  168 ;  3  U.  S.  Comp. 
Stats.  1916,  §1468.) 

The  statute  above  quoted  governs  the  practice  of  procuring  tes- 
timony to  be  used  in  the  courts  of  the  United  States,  and  excludes 
anything  in  the  state  practice  to  the  contrary.9 

Open  court  is  in  the  presence  of  the  court  and  jury  at  the 
trial.10 

The  exceptions  mentioned  are  provisions  respecting  deposi- 
tions, and  letters  rogatory  set  out  in  chapter  13,  above,  tran- 
scripts and  copies  of  official  records  and  other  documentary  evi- 
dence set  out  in  chapter  11,  above. 

§  596.  The  Taking  of  Exceptions  Does  not  Conform  to  State 
Practice.  .  Appellate  procedure  in  federal  courts  necessarily 
must  be  governed  by  their  own  rules,  as  this  is  a  matter  which  has 
to  do  with  the  organization  of  the  judicial  system. 

Section  953,  Rev.  Stats.,  is  the  only  statutory  provision  as  to 
preserving  exceptions11  except  that  §  700,  Rev.  Stats.,  providing 
for  trial  of  cases  without  the  intervention  of  a  jury,  provides  that 
"the  ruling  of  the  court  in  the  progress  of  the  trial  of  the  cause  if 
excepted  at  the  time,  and  duly  presented  by  a  bill  of  exceptions, 
may  be  reviewed,"  etc. 

In  this  last-mentioned  section  the  federal  courts  act  independ- 
ently of  state  statutes  or  state  practice.12  Even  an  agreement  of 
the  parties  cannot  authorize  the  federal  court  to  depart  from  the 
federal  rules  in  this  respect.13 

»  Ex  parte  Fisk,  113  U.  S.  713,  28  L.  Ed.  1117,  5  Sup.  Ct.  724;  Union 
Pacific  Ry.  Co.  v.  Botsford,  141  U.  S.  250,  35  L.  Ed.  734,  11  Sup.  Ct.  1000. 

10  Beardsley  v.  Littell,  14  Blatchf.  102,  Fed.  Cas.  No.  1185. 

11  /In  re  Chateaugay  Ore  etc.  Co..  128  U.  S.  544,  32  L.  Ed.  508,  9  Sup.  Ct. 
150;  Duncan  v.  Landis,  106  Fed.  839,  844,  45  C.  C.  A.  666. 

12  United  States  v.  King,  7  How.  (U.  S.)  833,  12  L.  Ed.  934;  Shipinan  v. 
Ohio  Coal  Exch.,  70  Fed.  652,  17  C.  C.  A.  313. 

13  Richmond  v.   Smith,   15   Wall.   (U.  S.)   429,  21  L.  Ed.  200;   Kelsey  v. 
Forsyth,  21  How.  (U.  S.)  85,  16  L.  Ed.  32. 


287  TRIAI^LAW  ACTIONS.          Ch.  22,  §§  597-599 

§  597.  Time  for  Excepting  to  Rulings.  Section  953,  Rev. 
Stats.,  does  not  limit  the  time  within  which  exceptions  shall  be 
filed  or  allowed,14  nor  the  time  to  make,  file,  and  serve  a  bill  of 
exceptions.15 

Under  §  700,  Rev.  Stats.,  the  ruling  must  be  "excepted  to  at  the 
time."  It  must  show  from  the  record  that  the  party  objected  at 
the  trial  to  the  rulings  and  wished  the  exceptions  noted  and  re- 
duced to  a  bill,  and  that  the  party  persisted  in  them.16  The  time 
for  presentation  and  allowance  of  the  bill  of  exceptions  may  be 
extended  in  the  discretion  of  the  court.17 

§598.  Conduct  of  the  Trial.  The  conduct  of  the  trial  is  a 
matter  of  personal  administration  by  the  judge,  and  does  not, 
therefore,  conform  to  the  state  laws  or  rules  on  that  subject. 

Thus,  the  "scintilla  of  evidence  rule"  does  not  apply,18  but  the 
judge,  with  due  deference  to  the  province  of  the  jury  to  pass  upon 
the  weight  and  credibility  of  the  evidence,19  may  withdraw  the 
case  from  the  jury  and  instruct  a  verdict.20 

Likewise  the  judge,  in  his  discretion,  may  permit  the  jury  to 
separate  after  the  charge  is  given,21  or  refuse  to  ask  a  special  ver- 
dict authorized  by  state  law,22  or  may  comment  on  the  evidence 
though  forbidden  by  state  law.23 

§  599.  Charge  to  the  Jury — Instructions.  The  charge  to  the 
jury  is  within  the  judge's  personal  administration  of  the  case. 

As  stated  in  the  preceding  section,  he  may  comment  on  the  evi- 
dence and  express  an  opinion  as  to  the  facts,  provided  he  sepa- 

14  New  York  etc.  R.  Co.  v.  Hyde,  56  Fed.  188,  5  C.  C.  A.  461. 

15  Talbot  v.  Press  Pub.  Co.,  80  Fed.  567. 

16  United  States  v.  Jarvis,  3  Woodb.  &  M.  217,  26  Fed.  Cas.  No.  15,469. 
"  Dalton  v.  Hazelet,  182  Fed.  561,  105  C.  C.  A.  99. 

18  Ozanne  v.  Illinois  C.  R.  Co.,  151  Fed.  900. 

19  Wichita  R.  &  L.  Co.  v.  Dulaney,  159  Fed.  417,  86  C.  C.  A.  397;  New- 
burger  Cotton  Co.  v.  York  Cotton  Mills,  152  Fed.  398,  81  C.  C.  A.  524. 

20  Teis  v.  Smuggler  Min.  Co.,  158  Fed.  261,  lo  L.  R.  A.   (N.  S.)   893,  85 
C.  C.  A.  478;  McGuire  v.  Blount,  199  U.  S.  142,  50  L.  Ed.  125,  26  Sup.  Ct.  1. 

21  Liverpool  etc.  Ins.  Co.  v.  N.  &  M.  Friedman  Co.,  133  Fed.  713,  66  C.  C.  A. 
543;  Nudd  v.  Burrows,  91  U.  S.  426,  23  L.  Ed.  286. 

22  United  States  Mutual  Ace.  Assn.  v.  Barry,  131  U.  S.  100,  33  L.  Ed.  60, 
9  Sup.  Ct.  75.1. 

23  Nudd  v.  Burrows.  91  U.  S.  426,  23  L.  Ed.  286,  290;  Lincoln  v.  Power, 
151  U.  S.  436,  38  L.  Ed.  224,  14  Sup.  Ct.  387. 


§  599,  Ch.  22          MANUAL  OP  FEDERAL  PROCEDURE.  288 

rates  the  law  from  the  facts  in  his  charge,  giving  the  jury  to  under- 
stand that  the  determination  of  the  facts  is  their  own  province.24 

The  refusal  to  give  special  charges  after  argument  was  begun 
was  held  not  error  under  a  rule  that  special  charges  should  be  re- 
quested before  argument.25 

The  instructions  need  not  be  in  writing  even  though  the  state 
law  so  requires,26  nor  need  the  judge  permit  the  instructions  to 
be  taken  by  the  jury  upon  retiring  if  that  rule  be  not  expressly 
adopted  from  the  state  practice.27 

24  Union  Pac.  B.  Co.  v.  Thomas,  152  Fed.  365,  371,  81  C.  C.  A.  491. 

25  Atchison  T.  &  S.  F.  Ry.  Co.  v.  Hamble,  177  Fed.  644,  101  C.  C.  A.  270. 

26  Lincoln  v.  Power,  151  U.  S.  436,  38  L.  Ed.  224,  14  Sup.  Ct.  387. 

27  Nudd  v.  Burrows,  91  U.  S.  426,  441,  23  L.  Ed.  286;  Western  Union  Tel. 
Co.  v.  Burgess,  108  Fed.  26,  47  C.  C.  A.  168. 


VERDICT,  MUTlUiN  i-'Uii  xXilW  TKIAJu,  ETC.      Ch.  23,  §§  blO    (Jl'd 


CHAPTER  23. 

VERDICT— MOTION  FOB  NEW  TBIAL— BILL  OF  EXCEPTIONS. 

SEC. 

610.  Special  Verdict. 

611.  Form  and  Effect  of  General  Verdict. 

612.  Amendment  of  Verdict. 

613.  Motion  for  New  Trial. 

o!4.     Bill  of  Exceptions — Authentication,  Signing  and  Contents. 

§  610.  Special  Verdict.  The  federal  courts  are  not  bound  by 
requirements  of  state  statutes  requiring  special  verdicts  on  the  re- 
quest of  either  party.1 

§611.  Form  and  Effect  of  General  Verdict.  The  form  and 
effect  of  the  verdict  under  the  conformity  act,  §  914,  Rev.  Stats., 
are  matters  in  which  the  federal  courts  will  follow  the  state 
practice.2 

§  612.  Amendment  of  Verdict.  Under  §  954,  Rev.  Stats.,  pro- 
viding for  amendment  of  proceedings,  etc.,  in  federal  courts,  a  ver- 
dict may  be  amended  to  conform  to  technical  requirements.8 

Amendments  should  usually  be  made  before  the  jury  separates,4 
but  may  be  so  amended  during  the  term  by  reference  to  the  judge's 
notes  or  on  other  satisfactory  evidence.8 

§613.     Motion  for  New  Trial. 

§  269,  Jud.  Code  (Re-enacting  §  726,  Rev.  Stats.).     "All  the 
said  courts  shall  have  power  to  grant  new  trials,  in  cases  where 

1  United  States  Mutual  Ace.  Assn.  v.  Barry,  131  U.  S.  100,  119,  33  L.  Ed. 
60,  9  Sup.  Ct.  755. 

2  Glenn  v.  Sumner,  132  U.  S.  152.  156,  33  L.  Ed.  301,  10  Sup.  Ct.  41. 

3  Gay  v.  Joplin,  13  Fed.  650,  4  McCrary,  459. 

4  Pressed  Steel  Car  Co.  v.  Steel  Car  Forge  Co.,  149  Fed.  182,  79  C.  C.  A. 
130. 

5  Miller  v.  Steele,  153  Fed.  714,  715,  82  C.  C.  A.  572;  Elliott  v.  Gilmore, 
145  Fed.  964,  965. 

Manual — 19 


§  614,  Ch.  23  MANUAL  OF  FEDERAL   PROCEDURE.  290 

there  has  been  a  trial  by  jury,  for  reasons  for  which  new  trials 
.  have  usually  been  granted  in  courts  of  law."     (36  Stats.  1163 ; 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1047;  2  TJ.  S.  Comp.  Stats.  1916, 
§  1246.) 

This  is  a  matter  of  discretion  with  the  trial  judge,  and  not  sub- 
ject to  review.6 

And  a  motion  for  a  new  trial  is  not  necessary  for  purposes  of 
obtaining  a  review  by  the  appellate  court.7 

State  statutes  may  add  to  the  power  of  the  court  to  grant  new 
trials,  as  in  case  of  allowing  two  new  trials  in  ejectment  suits.8 

§  614.  Bill  of  Exceptions — Authentication,  Signing  and  Con- 
tents. 

§  953,  Rev.  Stats.  "That  a  bill  of  exceptions  allowed  in  any 
cause  shall  be  deemed  sufficiently  authenticated  if  signed  by 
the  judge  of  the  court  in  which  the  cause  was  tried,  or  by  the 
presiding  judge  thereof  if  more  than  one  judge  sat  at  the  trial 
of  the  cause,  without  any  seal  of  the  court  or  judge  annexed 
thereto.  And  in  case  the  judge  before  whom  the  cause  has 
heretofore  been  or  may  hereafter  be  tried  is,  by  reason  of 
death,  sickness,  or  other  disability,  unable  to  hear  and  pass 
upon  the  motion  for  a  new  trial  and  allow  and  sign  said  bill 
of  exceptions,  then  the  judge  who  succeeds  such  trial  judge, 
or  any  other  judge  of  the  court  in  which  the  cause  was  tried, 
holding  such  court  thereafter,  if  the  evidence  in  such  cause 
has  been  or  is  taken  in  stenographic  notes,  or  if  the  said  judge 
is  satisfied  by  any  other  means  that  he  can  pass  upon  such 
motion  and  allow  a  true  bill  of  exceptions,  shall  pass  upon  said 
motion  and  allow  and  sign  such  bill  of  exceptions;  and  his 
ruling  upon  such  motion  and  allowance  and  signing  of  such 
bill  of  exceptions  shall  be  as  valid  as  if  such  ruling  and  allow- 
ance and  signing  of  such  bill  of  exceptions  had  been  made 
by  the  judge  before  whom  such  cause  was  tried;  but  in  case 
said  judge  is  satisfied  that  owing  to  the  fact  that  he  did  not 

6  Newcomb  v.  Wood,  97  U.  S.  581,  583,  24  L.  Ed.  1085,  1086. 

7  Aaron  v.  United  States,  155  Fed.  833,  84  C.  C.  A.  67;  Boatmen's  Bank  v. 
Trower  Bros.  Co.,  181  Fed.  804,  104  C.  C.  A.  314;  Owen  v.  Giles,  157  Fed 
825,  85  C.  C.  A.  189. 

8  Smale  v.  Mitchell,  143  U.  S.  99,  108,  36  L.  Ed.  90,  92,  32  Sup.  Ct.  353. 
See,  also,  Clark  v.  Sohier,  1  Woodb.  &  M.  368,  4  Fed.  Gas.  No.  283o. 


291  VERDICT,  MOTION  FOR  NEW  TRIAL,  ETC.       Ch.  23,  §  614 

preside  at  the  trial,  or  for  any  other  cause,  that  he  cannot 
fairly  pass  upon  said  motion,  and  allow  and  sign  said  bill  of 
exceptions,  then  he  may  in  his  discretion  grant  a  new  trial  to 
the  party  moving  therefor."  (6  Fed.  Stats.  Ann.,  2d  ed., 
p.  93;  2  U.  S.  Comp.  Stats.  1916,  §  1590.) 

The  contents  of  the  bill  of  exceptions  are  set  out  in  Rule  10  of 
the  circuit  courts  of  appeal  (Appendix,  post),  and  Rule  4  of  the 
supreme  court  (Appendix,  post),  of  which  paragraph  1  is  the  same 
as  in  Rule  10,  first,  seventh,  eighth  and  ninth  circuits,  and  para- 
graph 2  the  same  as  paragraph  2,  Rule  10,  fourth  circuit. 


Ch.  24  MANUAL  OF  FEDERAL  i'JROCEDURE.  292 


CHAPTER  24. 

JUDGMENTS  AND  EXECUTION— LAW  ACTIONS. 

SEC. 

620.  Judgments — In  General. 

621.  Executions — In  General. 

622.  Judgments  at  Law  Generally  Conform  to  State  Practice. 

623.  Interest  on  Judgments — Rate,  Allowance  of,  Levy  for — Conforms  to 

State  Law. 

624.  Judgments — Kind  of  Money  Payable  in  Suits  for  Duties. 

625.  Record  of  Judgment  as  Required  by  State  Laws. 

626.  Indexes  of  Judgment  Records. 

627.  'Lien  of  Judgment — Manner  and  Extent — Conform  to  State  Laws. 

628.  Lien  of  Judgment  or  Execution  not  Divested  by  Creation  of  a  New  Dis- 

trict or  Division,  nor  by  the  Division  or  Transfer  of  Territory. 

629.  Amendments  of  Judgment. 

630.  Vacation  of  Judgment  Governed  by  Federal  Decisions. 

631.  Executions  in  Common-law  Causes  Conform  to  State  Statutes  by  Rule  of 

Court. 

632.  Executions  not  to  Issue  Against  Revenue  Officers  for  Moneys  Paid  into 

Treasury  on  Probable  Cause. 

633.  Execution — Stay  Pending  Motion  for  New  Trial — Vacation  of  Judgment 

by  Granting  New  Trial. 

634.  Execution — Stay  for  One  Term  Where  State  Law  Allows  Such  Stay. 

635.  Executions  may  Run  and  be  Executed  in  Any  Part  of  a  State,  and  on 

Behalf  of  the  United  States  in  Any  Other  State  or  Territory. 

636.  Execution — Imprisonment  for  Debt — Modifications  of  State  Law  Adopted. 

637.  Execution — Discharge  from  Arrest  or  Imprisonment  in  Civil  Actions  Con- 

form to  State  Laws. 

638.  Execution — Imprisonment  for  Debt  in  Government  Suits — Discharge  of 

Poor   Debtor   Under  §  3471,   Rev.   Stats. 

639.  Same — Discharge  by  President  When  Secretary  of  Treasury  not  Author- 

ized. 

640.  Execution — Sale  of  Real  Estate  or  Personal  Property — Place  of  Sale. 

641.  Execution — Sale  of  Real  Estate — Publication  of  Notice. 

642.  Execution — Sale  of  Real  Estate — Marshal's   Successor  to   Continue   Pro- 

ceedings. 

643.  Execution — Sale    of    Real    Estate    in    Government    Suits — Purchase    by 

Government. 

644.  Execution — Sale   of  Personal   Property — Appraisal   Under     §    993,   Rev. 

Stats.,  in  Same  Manner  as  Required  by  State  Law. 


293      JUDGMENTS  AND  EXECUTION — LAW  ACTIONS.      Ch.  24,  §§  G20-621 

§  620.  Judgments — In  General.  Judgments  in  law  actions 
may  conform  by  general  rule  to  state  laws  under  the  "conformity 
act,"  §  914,  Rev.  Stats.  Judgments  by  default  are  authorized  by 

• 

§  918,  Rev.  Stats.  (§  542,  above),  and  defaults  in  suits  by  govern- 
ment on  bonds,  §961,  Rev.  Stats.  (§542,  above,  and  amendments 
by  §  954,  Rev.  Stats.  (§  629,  below). 

The  allowance  of  interest  (§  623,  below)  as  provided  by  state 
laws  is  permitted  by  §  966,  Rev.  Stats.,  interest  or  bonds  for 
duties  is  provided  by  §  963,  Rev.  Stats.,  and  interest  on  customs 
debentures  by  §  965,  Rev.  Stats. 

The  kind  of  money  payable  in  suits  for  duties  is  provided  by 
§  962,  Rev.  Stats.  (§  624,  below). 

The  recording,  docketing,  and  indexing  of  judgments  conform 
under  §  1,  Act  Aug.  1,  1888,  c.  729  (§  625,  below). 

The  clerks  of  the  United  States  courts  are  required  to  keep  in- 
dexes of  such  judgments  by  §2,' Act  Aug.  1,  1888,  c.  729  (§626, 
below). 

The  manner,  effect,  and  extent  of  the  lien  of  judgments  con- 
form to  state  laws  under  §  1,  Act  Aug.  1,  1888,  c.  729,  and  when 
they  shall  cease  to  be  liens  by  §967,  Rev.  Stats.  (§627,  below). 
The  lien  of  a  judgment  on  execution  by  change  of  boundaries  is 
preserved  by  §  60,  Jud.  Code  (§  70,  above). 

Amendments  for  defect  in  form  are  permitted  under  §  954,  Rev. 
Stats.,  regardless  of  state  statute  (§  629,  below). 

Judgments  may  be  vacated  within  the  term,  but  not  after  term, 
except  by  an  independent  suit  in  equity  for  equitable  cause 
(§630,  below). 

§  621.  Executions — In  General.  Executions  on  judgments 
in  law  actions  may  conform  by  general  rule  to  state  statutes  un- 
der §  916,  Rev.  Stats.  (§  631,  below). 

Executions  are  not  to  issue  against  revenue  officers  for  moneys 
paid  into  the  treasury  on  probable  cause  under  §  989,  Rev.  Stats. 
(§632,  below). 

Executions  may  be  stayed  pending  motion  for  new  trial  under 
§  987,  Rev.  Stats.  (§  633,  below).  And  where  state  allows  stay  for 


§  622,  Ch.  24         MANUAL  OF  FEDERAL  PROCEDURE.  294 

one  term  or  more,  there  may  be  stay  for  one  term  in  the  federal 
court  under  §988,  Rev.  Stats.  (§634,  below). 

Executions  may  run  and  be  executed  in  any  j>art  of  a  state  under 
§  985,  Rev.  Stats.,  and  on  judgment  in  favor  of  the  United  States 
may  run  in  every  state  and  territory  under  §  986,  Rev.  Stats.  (§  635, 
below). 

State  laws  regarding  abolishment  of  imprisonment  for  debt  are 
effective  under  §  990,  Rev.  Stats.  (§636,  below),  and  for  the  dis- 
charge of  a  person  from  arrest  or  imprisonment  in  civil  cases  by 
§  991,  Rev.  Stats.  (§  637,  below). 

A  poor  debtor  may  be  discharged  from  imprisonment  for  debt  in 
government  suits  by  the  Secretary  of  the  Treasury  under  §  3471, 
Rev.  Stats.  (§  638,  below),  or  by  the  President  under  §  3472,  Rev. 
Stats.  (§  639,  below),  when  the  Secretary  is  not  authorized. 

The  place  of  sale  of  real  or  personal  property  is  governed  by 
§§  1  and  2,  Act  March  3,  1893,  c.  225  (§  640,  below),  and  the  publi- 
cation of  notice  of  sale  of  real  estate  by  §  3  of  the  same  act  (§  641, 
below).  Proceedings  for  sale  of  real  estate  are  not  interrupted  by 
a  vacancy  in  the  marshal's  office  but  are  continued  by  his  successor 
under  §^994,  Rev.  Stats.  (§642,  below). 

The  government  may  be  a  purchaser  in  execution  sales  of  real 
estate  in  government  suits  under  §  3470,  Rev.  Stats.  (§  643,  below). 

Appraisal  of  personal  property  sold  on  execution  may  conform 
under  §  993,  Rev.  Stats.,  to  state  laws  (§  644,  below). 

§  622.  Judgments  at  Law  Generally  Conform  to  State  Prac- 
tice. 

Part  §  91 4,  Rev.  Stats.  "The  practice,  .  .  .  forms,  and 
modes  of  proceeding  in  civil  causes  .  .  .  shall  conform,  as 
near  as  may  be,  to  the  practice,  .  .  .  forms,  and  modes  of  pro- 
ceeding existing  at  the  time  in  like  causes  in  the  courts  of  rec- 
ord of  the  state  within  which  such  .  .  .  district  courts  are 
held,  any  rule  of  court  to  the  contrary  notwithstanding." 
(6  Fed.  Stats.  Ann.,  2d  ed.,  p.  21  j  3  U.  S.  Comp.  Stats.  1916, 
§  1537,  p.  2912.) 


205      JUDGMENTS  AND  EXECUTION — LAW  ACTIONS.     Ch.  24,  §§  023-624 

Judgments  by  default  generally  conform  to  state  statutes  though 
the  district  courts  may  provide  for  same  by  rule  under  §  918,  Rev. 
Stats.  This  subject  is  treated  in  §  542,  supra. 

§  623.  Interest  on  Judgments — Rate,  Allowance  of,  Levy  for — 
Conforms  to  State  Law. 

§  966,  Rev.  Stats.  "Interest  shall  be  allowed  on  all  judg- 
ments in  civil  causes,  recovered  in  a  circuit  or  district  court, 
and  may  be  levied  by  the  marshal  under  process  of  execution 
issued  thereon,  in  all  cases  where,  by  the  law  of  the  state  in 
which  such  court  is  held,  interest  may  be  levied  under  process 
of  execution  on  judgments  recovered  in  the  courts  of  such 
state ;  and  it  shall  be  calculated  from  the  date  of  the  judgment, 
at  such  rate  as  is  allowed  by  law  on  judgments  recovered  in 
the  courts  of  such  state."  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  604; 
3  U.  S.  Comp.  Stats.  1916,  §  1605.) 

Interest  on  Bonds  for  Duties. 

§963,  Rev.  Stats.  "Upon  all  bonds,  on  which  suits  are 
brought  for  the  recovery  of  duties,  interest  shall  be  allowed, 
at  the  rate  of  six  per  centum  a  year,  from  the  time  when  said 
bonds  became  due."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  1132; 
3  U.  S.  Comp.  Stats.  1916,  §  1601.) 

Interest  on  Customs  Debentures. 

§  965,  Rev.  Stats.  ' '  In  suits  upon  debentures  issued  by  the 
collectors  of  the  customs  under  any  act  for  the  collection  of 
duties,  interest  shall  be  allowed,  at  the  rate  of  six  per  centum 
per  annum,  from  the  time  when  such  debenture  became  due 
and  payable."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  1132 ;  3  U.  S. 
Comp.  Stats.  1916,  §  1603.) 

§624.  Judgments — Kind  of  Money  Payable  in  Suits  for 
Duties. 

1962,  Rev.  Stats.  "In  all  suits  by  the  United  States  for 
the  recovery  of  duties  upon  imports,  or  of  penalties  for  the 
nonpayment  thereof,  the  judgment  shall  recite  that  it  is  ren- 
dered for  duties,  and  such  judgment,  with  interest  thereon, 
and  costs,  shall  be  payable  in  the  coin  by  law  receivable  for 


§§  625-626,  Ch.  24     MANUAL  OF  FEDERAL  PROCEDURE.  296 

duties;  and  the  execution  issued  thereon  shall  set  forth  that 
the  recovery  is  for  duties,  and  shall  require  the  marshal  to 
satisfy  the  same  in  the  coin  by  law  receivable  for  duties;  and 
in  case  of  levy  upon  and  sale  of  the  property  of  the  judgment , 
debtor,  the  marshal  shall  refuse  payment  from  any  purchaser 
at  such  sale  in  any  other  money  than  that  specified  in  the  exe- 
cution." (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  1132;  3  U.  S.  Comp. 
Stats.  1916,  §  1600.) 

§  625.    Record  of  Judgment  as  Required  by  State  Laws. 

Part  §  1,  Act  Aug.  1,  1888,  c.  729.  ."  '.  .  .  That  whenever 
the  laws  of  any  state  require  a  judgment  or  decree  of  a  state 
court  to  be  registered,  recorded,  docketed,  indexed,  or  any 
other  thing  to  be  done,  in  a  particular  manner,  or  in  a  certain 
office  or  county,  or  parish  in  the  state  of  Louisiana  before  a 
lien  shall  attach,  this  act  shall  be  applicable  therein  whenever 
and  only  whenever  the  laws  of  such  state  shall  authorize  the 
judgments  and  decrees  of  the  United  States  courts  to  be  regis- 
tered, recorded,  docketed,  indexed,  or  otherwise  conformed  to 
the  rules  and  requirements  relating  to  the  judgments  and  de- 
crees of  the  courts  of  the  state."  (25  Stats.  357;  4  Fed.  Stats. 
Ann.,  2d  ed.,  p.  608;  3  U.  S.  Comp.  Stats.  1916,  §  1606.) 

Section  3,  Act  August  1,  1888,  chapter  729,  obviating  the  neces- 
sity of  filing  a  transcript  of  a  judgment  in  the  state  office  of  the 
county  where  the  clerk  of  the  United  States  has  a  permanent  office, 
is  repealed  by  Act  August  17,  1912,  c.  300,  37  Stats.  311 ;  3  U.  S. 
Comp.  Stats.  1916,  p.  3211. 

§  626.    Indices  of  Judgment  Records. 

§  2,  Act  Au&  1,  1888,  c.  729.  "That  the  clerks  of  the  sev- 
eral courts  of  the  United  States  shall  prepare  and  keep  in 
their  respective  offices  complete  and  convenient  indices  and 
cross  indices  of  the  judgment  records  of  said  courts,  and  such 
indices  and  records  shall  at  all  times  be  open  to  the  inspection 
and  examination  of  the  public."  (25  Stats.  357;  4  Fed.  Stats. 
Ann.,  2d  ed.,  p.  609;  3  U.  S.  Comp.  Stats.  1916,  §  1607.) 


297      JUDGMENTS  AND  EXECUTION — LAW  ACTIONS.      Ch.  24,  §§  627-G29 

§  627.  Lien  of  Judgment — Manner  and  Extent — Conform  to 
State  Laws. 

Part  §  1,  Act  Aug.  1,  1888,  c.  729.  "That  judgments  and 
decrees  rendered  in  a  circuit  or  district  court  of  the  United 
States  within  any  state  shall  be  liens  on  property  throughout 
such  state,  in  the  same  manner,  and  to  the  same  extent,  and 
under  the  same  conditions  only,  as  if  such  judgments  and  de- 
crees had  been  rendered  by  a  court  of  general  jurisdiction  of 
such  state:  .  .  .  ".  (25  Stats.  357;  4  Fed.  Stats.  Ann.,  2d  ed., 
p.  608;  3  U.  S.  Comp.  Stats.  1916,  §  1606.) 

§  967,  Eev.  Stats.  "Judgments  and  decrees  rendered  in 
a  circuit  or  district  court,  within  any  state,  shall  cease  to  be 
liens  on  real  estate  or  chattels  real,  in  the  same  manner  and 
at  like  periods  as  judgments  and  decrees  of  the  courts  of  such 
state  cease,  by  law,  to  be  liens  thereon."  (4  Fed.  Stats.  Ann., 
2d  ed.,  p.  606;  3  U.  S.  Comp.  Stats.  1016,  §  1608.) 

§  628.  Lien  of  Judgment  or  Execution  not  Divested  by  Crea- 
tion of  a  New  District  or  Division,  nor  by  the  Division  or  Trans- 
fer of  Territory.  By  §  60,  Jud.  Code,  quoted  in  §  70,  supra,  and 
in  the  Appendix,  it  is  provided  that  the  lien  of  a  judgment  or 
execution,  etc.,  shall  not  be  divested  by  a  change  of  boundaries  of 
any  territory,  and  that  a  certified  copy  thereof  may  be  filed  in  the 
proper  court  of  the  division  or  district  in  which  the  property  is 
located  after  such  transfer,  and  have  the  same  effect  as  an  original. 

§  629.     Amendments  of  Judgment. 

Part  §  954,  Rev.  Stats.  "No  .  .  .  judgment  ...  in  civil 
causes,  in  any  court  of  the  United  States,  shall  be  abated, 
arrested,  quashed,  or  reversed  for  any  defect  or  want  of  form, 
.  .  .  and  such  court  shall  amend  every  such  defect  and  want 
of  form  .  .  .  upon  such  conditions  as  it  shall,  in  its  discretion 
and  by  its  rules,  prescribe."  (6  Fed.  Stats.  Ann.,  2d  ed.,  title 
"Judiciary";  3  U.  S.  Comp.  Stats.  1916,  §  1591.) 

This  section  does  not  permit  amendments  in  judgments  except 
as  to  defects  or  want  of  form.1 

1  Albers  v.  Whitney,  1  Story,  310,  1  Fed.  Gas.  No.  137. 


§§  630-631,  Ch.  24     MANUAL  OF  FEDERAL  PROCEDURE.  298 

The  judgment  may  be  amended,  modified,  or  set  aside  during  the 
term  of  entry.2 

§  630.    Vacation  of  Judgment  Governed  by  Federal  Decisions. 

The  inherent  power  to  vacate  a  judgment  during  the  term  in  which 
it  is  entered  is  settled  beyond  controversy.3  But  a  judgment 
cannot  be  changed  or  substantially  modified  after  the  term  has  ex- 
pired regardless  of  state  law  or  practice.4  There  may,  however, 
be  an  independent  equity  suit  to  relieve  of  a  judgment  at  law 
where  there  is  fraud  or  other  equitable  grounds.5 

§  631.  Executions  in  Common-law  Causes  Conform  to  State 
Statutes  by  Rule  of  Court. 

§916,  Rev.  Stats.  "The  party  recovering  a  judgment  in 
any  common-law  cause  in  any  circuit  or  district  court  shall  be 
entitled  to  similar  remedies  upon  the  same,  by  execution  or 
otherwise,  to  reach  1;he  property  of  the  judgment  debtor,  as 
are  now  provided  in  like  causes  by  the  laws  of  the  state  in 
which  such  court  is  held,  or  by  any  such  laws  hereafter  en- 
acted which  may  be  adopted  by  general  rules  of  such  circuit 
or  district  court ;  and  such  courts  may,  from  time  to  time,  by 
general  rules,  adopt  such  state  laws  as  may  hereafter  be  in 
force  in  such  state  in  relation  to  remedies  upon  judgments,  as 
aforesaid,  by  execution  or  otherwise."  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  229 ;  3  U.  S.  Comp.  Stats.  1916,  §  1540.) 

"When  parties  seek  attachments,  garnishments,  executions,  pro- 
visional remedies  of  various  kinds,  in  the  courts  of  the  United 
States,  it  is  not  the  habit  of  counsel  or  of  the  court  to  search  the 
statutes  of  a  quarter  of  a  century  ago,  and  to  conform  the  pro- 
ceedings of  the  federal  courts  to  those  then  in  force  in  the  courts 
of  the  several  states,  but  they  adopt  and  use  remedies  prescribed 
by  their  state  statutes  in  force  at  the  time  they  act.  A  general 
and  uniform  practice  becomes  a  general  and  established  rule  of 
the  court,  and  in  the  absence  of  convincing  evidence  to  the  con- 

2  Southern  Pac.  R.  Co.  v.  Kelley,  187  Fed.  937,  939,  109  C.  C.  A.  659. 

3  Ibid. 

4  Bronson  v.  Schulten,    104  U.  S.  410,  26  L.  Ed.  797. 

(>  Johnson  v.  Waters,  111  U.  S.  640,  667,  28  L.  Ed.  547,  556,  4  Sup.  Ct.  619, 


291)      JUDGMENTS  AND  EXECUTION — LAW  ACTIONS.     Ch.  24,  §§  632-G33 

trary  the  presumption  in  the  appellate  court  is  that  the  remedial 
statutes  in  force  in  the  states  at  the  time  when  proceedings  under 
them  were  taken  in  the  federal  courts  had  been  adopted  by  those 
courts,  either  by  written  rule  or  by  general  practice."8 

§  632.     Executions  not  to  Issue  Against  Revenue  Officers  for 
Moneys  Paid  into  Treasury  on  Probable  Cause. 

§  989,  Rev.  Stats.  ' '  When  a  recovery  is  had  in  any  suit  or 
proceeding  against  a  collector  or  other  officer  of  the  revenue 
for  any  act  done  by  him,  or  for  the  recovery  of  any  money 
exacted  by  or  paid  to  him  and  by  him  paid  into  the  Treasury, 
in  the  performance  of  his  official  duty,  and  the  court  certifies 
that  there  was  probable  cause  for  the  act  done  by  the  collector 
or  other  officer,  or  that  he  acted  under  the  directions  of  the 
Secretary  of  the  Treasury,  or  other  proper  officer  of  the  gov- 
ernment, .no  execution  shall  issue  against  such  collector  or 
other  officer,  but  the  amount  so  recovered  shall,  upon  final 
judgment,  be  provided  for  and  paid  out  of  the  proper  appro- 
priation from  the  Treasury."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  232;  3  U.  S.  Comp.  Stats.  1916,  §  1635.) 

§633.    Execution— Stay    Pending    Motion   for   New   Trial- 
Vacation  of  Judgment  by  Granting  New  Trial. 

§  987,  Rev.  Stats.  "When  a  circuit  court  enters  judgment 
in  a  civil  action,  either  upon  a  verdict  or  on  a  finding  of  the 
court  upon  the  facts,  in  cases  where  such  finding  is  allowed, 
execution  may,  on  motion  of  either  party,  at  the  discretion  of 
the  court,  and  on  such  conditions  for  the  security  of  the  ad- 
verse party  as  it  may  judge  proper,  be  stayed  forty-two  days 
from  the  time  of  entering  judgment,  to  give  time  to  file  in  the 
clerk's  office  of  said  court  a  petition  for  a  new  trial.  If  such 
petition  is  filed  within  said  term  of  forty-two  days,  with  a  cer- 
tificate thereon  from  any  judge  of  such  court  that  he  allows  it 
to  be  filed,  which  certificate  he  may  make  or  refuse  at  his  dis- 
cretion, execution  shall,  of  course,  be  further  stayed  to  the 
next  session  of  said  court.  If  a  new  trial  be  granted,  the 
former  judgment  shall  be  thereby  rendered  void."  (3  Fed. 
Stats.  Ann.,  2d  ed.,  p.  230;  3  U.  S.  Comp.  Stats.  1916,  §  1633.) 

6  Logan  v,  Goodwin,  104  TVd.  490.  43  ff,  C.  A.  658. 


§§  634-636,  Ch.  24     MANUAL  OF  FEDERAL  PROCEDURE.  300 

§  634.  Execution— Stay  for  One  Term  Where  State  Law 
Allows  Such  Stay. 

§  988,  Rev.  Stats.  "  (When  judgment  debtor  entitled  to  a 
continuance  of  one  term.)  In  any  state  where  judgments  are 
liens  upon  the  property  of  the  defendant,  and  where,  by  the 
laws  of  such  state,  defendants  are  entitled,  in  the  courts 
thereof,  to  a  stay  of  execution  for  one  term  or  more,  defend- 
ants in  actions  in  courts  of  the  United  States,  held  therein, 
shall  be  entitled  to  a  stay  of  execution  for  one  term. "  (3  Fed. 
Stats.  Ann.,  2d  ed.,  p.  231;  3  U.  S.  Comp.  Stats.  1916,  §  1634.) 

§  635.  Executions  may  Run  and  be  Executed  in  Any  Part  of 
a  State,  and  on  Behalf  of  the  United  States  in  Any  Other  State  or 
Territory. 

§  985,  Rev.  Stats.  "All  writs  of  execution  upon  judgments 
or  decrees  obtained  in  a  circuit  or  district  court,  in  any  state 
which  is  divided  into  two  or  more  districts,  may  run  and  be 
executed  in  any  part  of  such  state;  but  shall  be  issued  from, 
and  made  returnable  to,  the  court  wherein  the  judgment  was 
obtained."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  229 ;  3  U.  S.  Comp. 
Stats.  1916,  §  1631.) 

§  986,  Rev.  Stats.  "All  writs  of  execution  upon  judgments 
obtained  for  the  use  of  the  United  States,  in  any  court  thereof, 
in  one  state,  may  run  and  be  executed  in  any  other  state,  or 
in  any  territory,  but  shall  be  issued  from,  and  made  return- 
able to,  the  court  wherein  the  judgment  was  obtained." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  230;  3  U.  S.  Comp.  Stats.  1916, 
§  1632.) 

§  636.  Execution — Imprisonment  for  Debt — Modifications  of 
State  Law  Adopted. 

§  990,  Rev.  Stats.  "No  person  shall  be  imprisoned  for  debt 
in  any  state,  on  process  issuing  from  a  court  of  the  United 
States,  where,  by  the  laws  of  such  state,  imprisonment  for  debt 
has  been  or  shall  be  abolished.  And  all  modifications,  condi- 
tions, and  restrictions,  upon  imprisonment  for  debt,  provided 
by  the  laws  of  any  state,  shall  be  applicable  to  the  process 
issuing  from  the  courts  of  the  United  States  to  be  executed 
therein;  and  the  same  course  of  proceedings  shall  be  adopted 


301      JUDGMENTS  AND  EXECUTION — LAW  ACTIONS.     Ch.  24,  §§  637-638 

therein  as  may  be  adopted  in  the  courts  of  such  state." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  234;  3  U.  S.  Comp.  Stats.  1916, 
§  1636.) 

§  637.    Execution — Discharge  from  Arrest  or  Imprisonment  in 
Civil  Actions  Conform  to  State  Laws. 

§  991,  Rev.  Stats.  "When  any  person  is  arrested  or  im- 
prisoned in  any  state,  on  mesne  process  or  execution  issued 
from  any  court  of  the  United  States,  in  any  civil  action,  he 
shall  be  entitled  to  discharge  from  such  arrest  or  imprison- 
ment in  the  same  manner  as  if  he  were  so  arrested  and  im- 
prisoned on  like  process  from  the  courts  of  such  state.  The 
same  oath  may  be  taken,  and  the  same  notice  thereof  shall  be 
required,  as  may  be  provided  by  the  laws  of  such  state,  and 
the  same  course  of  proceedings  shall  be  adopted  as  may  be 
adopted  in  the  courts  thereof.  But  all  such  proceedings  shall 
be  had  before  one  of  the  commissioners  of  the  circuit  court  for 
the  district  where  the  defendant  is  so  held."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  237;  3  U.  S.  Comp.  Stats.  1916,  §  1637.) 

§  638.    Execution  —  Imprisonment   for  Debt  in   Government 
Suits— Discharge  of  Poor  Debtor  Under  §  3471,  Rev.  Stats. 

§  3471,  Rev.  Stats.  "Any  person  imprisoned  upon  execu- 
tion issuing  from  any  court  of  the  United  States,  for  a  debt 
due  to  the  United  States,  which  he  is  unable  to  pay,  may,  at 
any  time  after  commitment,  make  application,  in  writing,  to 
the  Secretary  of  the  Treasury,  stating  the  circumstances  of 
his  case  and  his  inability  to  discharge  the  debt ;  and  thereupon 
the  Secretary  may  make,  or  require  to  be  made,  an  examina- 
tion and  inquiry  into  the  circumstances  of  the  debtor,  by  the 
oath  of  the  debtor,  which  the  Secretary,  or  any  other  per- 
son by  him  specially  appointed,  is  authorized  to  administer, 
or  otherwise,  as  the  Secretary  shall  deem  necessary  and  ex- 
pedient, to  ascertain  the  truth;  and  upon  proof  made  to  his 
satisfaction,  that  the  debtor  is  unable  to  pay  the  debt  for 
which  he  is  imprisoned,  and  that  he  has  not  concealed  or  made 
any  conveyance  of  his  estate,  in  trust,  for  himself,  or  with 
an  intent  to  defraud  the  United  States,  or  to  deprive  them 
of  their  legal  priority,  the  Secretary  is  authorized  to  receive 
from  such  debtor  any  deed,  assignment,  or  conveyance  of  his 


§§  639-640,  Ch.  24    MANUAL  OF  FEDERAL  PROCEDURE.  302 

real  or  personal  estate,  or  any  collateral  security,  to  the  use 
of  the  United  States.  Upon  a  compliance  by  the  debtor  with 
such  terms  and  conditions  as  the  Secretary  may  judge  reason- 
able and  proper,  the  Secretary  must  issue  his  order,  under 
his  hand,  to  the  keeper  of  the  prison,  directing  him  to  dis- 
charge the  debtor  from  his  imprisonment  under  such  execu- 
tion. The  debtor  shall  not  be  liable  to  be  imprisoned  again 
for  the  debt ;  but  the  judgment  shall  remain  in  force,  and  may 
be  satisfied  out  of  any  estate  which  may  then,  or  at  any  time 
afterward,  belong  to  the  debtor.  The  benefit  of  this  section 
shall  not  be  extended  to  any  person  imprisoned  for  any  fine, 
forfeiture,  or  penalty,  incurred  by  a  breach  of  any  law  of  the 
United  States,  or  for  moneys  had  and  received  by  any  officer, 
agent,  or  other  person,  for  their  use;  nor  shall  its  provisions 
extend  to  any  claim  arising  under  the  postal  laws."  (3  Fed. 
Stats.  Ann.,  2d  ed.,  p.  240;  6  U.  S.  Comp.  Stats.  1916,  §  6377.) 

§639.    Same — Discharge   by   President   When    Secretary   of 
Treasury  not  Authorized. 

§3472,  Rev.  Stats.  "Whenever  any  person  is  imprisoned 
upon  execution  for  a  debt  due  to  the  United  States,  which  he 
is  unable  to  pay,  and  his  case  is  such  as  does  not  authorize  his 
discharge  by  the  Secretary  of  the  Treasury,  under  the  preced- 
ing section,  he  may  make  application  to  the  President,  who, 
upon  proof  made  to  his  satisfaction  that  the  debtor  is  unable 
to  pay  the  debt,  and  upon  a  compliance  by  the  debtor  with 
such  terms  and  conditions  as  the  President  shall  deem  proper, 
may  order  the  discharge  of  such  debtor  from  his  imprison- 
ment. The  debtor  shall  not  be  liable  to  be  imprisoned  again 
for  the  same  debt;  but  the  judgment  shall  remain  in  force, 
and  may  be  satisfied  out  of  any  estate  which  may  then,  or  at 
any  time  afterward,  belong  to  the  debtor."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  241;  6  U.  S.  Comp.  Stats.  1916,  §  6378.) 

§  640.    Execution — Sale  of  Real  Estate  or  Personal  Property — 
Place  of  Sale. 

§  1,  Act  March  3,  1893,  c.  225.  "That  all  real  estate  or  any 
interest  in  land  sold  under  any  order  or  decree  of  any  United 
States  court  shall  be  sold  at  public  sale  at  the  courthouse 
of  the  county,  parish,  or  city  in  which  the  property,  or  the 


303      JUDGMENTS  AND  EXECUTION — LAW  ACTIONS.      Ch.  24,  §§  641-642 

greater  part  thereof,  is  located,  or  upon  the  premises  as  the 
court  rendering  such  order  or  decree  of  sale  may  direct." 
(27  Stats  751 ;  3  Fed.  Stats.  Ann.,  2d  ed.,  p.  241 ;  3  U.  S.  Comp. 
Stats.  1916,  §  1640.) 

Personal  property   sold  same  as  real  estate   unless  otherwise 
ordered. 

§2,  Act  March  3,  1893,  c.  225.  "That  all  personal  prop- 
erty sold  under  any  order  or  decree  of  any  court  of  the  United 
States  shall  be  sold  as  provided  in  the  first  section  of  this  act, 
unless,  in  the  opinion  of  the  court  rendering  such  order  or 
decree,  it  would  be  best  £o  sell  it  in  some  other  manner." 
(27  Stats.  751 ;  3  Fed.  Stats.  Ann.,  2d  ed.,  p.  243 ;  3  U.  S.  Comp. 
Stats.  1916,  §  1641.) 

§  641.    Execution — Sale  of  Real  Estate— -Publication  of  Notice. 

§  3,  Act  March  3,  1893,  c.  225.  "That  hereafter  no  sale  of 
real  estate  under  any  order,  judgment,  or  decree  of  any  United 
States  court  shall  be  had  without  previous  publication  of  no- 
tices of  such  proposed  sale  being  ordered  and  had  once  a  week 
for  at  least  four  weeks  prior  to  such  sale  in  at  least  one  news- 
paper printed,  regularly  issued,  and  having  a  general  circu- 
lation in  the  county  and  state  where  the  real  estate  proposed 
to  be  sold  is  situated,  if  such  there  be.  If  said  property  shall 
be  situated  in  more  than  one  county  or  state,  such  notice  shall 
be  published  in  such  of  the  counties  where  said  property  is 
situated,  as  the  court  may  direct.  Said  notice  shall,  among 
other  things,  describe  the  real  estate  to  be  sold.  The  court 
may,  in  its  discretion,  direct  the  publication  of  the  notice  of 
sale  herein  provided  for  to  be  made  in  such  other  papers  as 
may  seem  proper."  (27  Stats.  751 ;  3  Fed.  Stats.  Ann.,  2d  ed., 
p.  243;  3  U.  S.  Comp.  Stats.  1916,  §  1642.) 

§  642.    Execution — Sale  of  Real  Estate — Marshal's  Successor 
to  Continue  Proceedings. 

§  994,  Rev.  Stats.  "When  a  marshal  dies,  or  is  removed 
from  office,  or  the  term  of  his  commission  expires,  after  he 
has  taken  in  execution,  under  process  from  a  court  of  the 
United  States,  any  lands,  tenements,  or  hereditaments,  and 
before  sale  or  other  final  disposition  thereof,  the  like  pro- 


§§  643-644,  Ch.  24    MANUAL  OF  FEDERAL  PROCEDURE.  304 

cess  shall  issue  to  the  succeeding  marshal,  and  the  same  pro- 
ceeding shall  be  had  as  if  such  marshal  had  not  died  or  been 
removed,  or  the  term  of  his  commission  had  not  expired. 
And  when  a  marshal  dies  or  is  removed  from  office,  or  the 
term  of  his  commission  expires,  after  he  has  sold  any  lands, 
tenements,  or  hereditaments,  under  process  from  the  court 
of  the  United  States,  and  before  a  deed  for  the  same  is  exe- 
cuted by  him  to  the  purchaser,  such  court  may,  on  applica- 
tion by  the  purchaser,  or  by  the  plaintiff  at  whose  suit  the 
sale  was  made,  setting  forth  the  case  and  the  reason  why 
the  title  was  not  perfected  by  said  marshal,  order  the  mar- 
shal for  the  time  being  to  perfect  the  title  and  execute  a 
deed  to  the  purchaser,  upon  his  paying  the  purchase  money 
and  costs  remaining  unpaid."  (3>  Fed.  Stats.  Ann.,  2d  ed., 
p.  239;  3  U.  S.  Comp.  Stats.  1916,  §  1643.) 

§  643.  Execution — Sale  of  Real  Estate  in  Government  Suits — 
Purchase  by  Government. 

§3470,  Rev.  Stats.  "At  every  sale,  on  execution,  at  the 
suit  of  the  United  States,  of  lands  or  tenements  of  a  debtor, 
the  United  States  may,  by  such  agent  as  the  Solicitor  of  the 
Treasury  shall  appoint,  become  the  purchaser  thereof;  but 
in  no  case  shall  the  agent  bid  in  behalf  of  the  United  States 
a  greater  amount  than  that  of  the  judgments  for  which  such 
estate  may  be  exposed  to  sale,  and  the  costs.  Whenever 
such  purchase  is  made,  the  marshal  of  the  district  in  which 
the  sale  is  held  shall  make  all  needful  conveyances,  assign- 
ments, or  transfers  to  the  United  States."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  230;  6  U.  S.  Comp.  Stats.  1916,  §  6376.) 

§644.  Execution  —  Sale  of  Personal  Property  —  Appraisal 
Under  §  993,  Rev.  Stats.,  in  Same  Manner  as  Required  by  State 
Law. 

§  993,  Rev.  Stats.  "(Goods  taken  on  &  fieri  facias,  how 
appraised.)  "When  it  is  required  by  the  laws  of  any  state 
that  goods  taken  in  execution  on  a  writ  of  fieri  facias  shall 
'be  appraised,  before  the  sale  thereof,  the  appraisers  appointed 
under  the  authority  of  the  state  may  appraise  goods  taken 
in  execution  on  a  fieri  facias  issued  out  of  any  court  of  the 
United  States,  in  the  same  manner  as  if  such  writ  had  issued 


305  JUDGMENTS  AND  EXECUTION — LAW  ACTIONS.       Ch.  24,  §  644 

out  of  a  court  of  such  state.  And  the  marshal,  in  whose 
custody  such  goods  may  be,  shall  summon  the  appraisers,  in 
the  same  manner  as  the  sheriff  is,  by  the  laws  of  such  state, 
required  to  summon  them ;  and  if  the  appraisers,  being  duly 
summoned,  fail  to  attend  and  perform  the  duties  required 
of  them,  the  marshal  may  proceed  to  sell  such  goods  with- 
out an  appraisement.  When  such  appraisers  attend  they 
shall  be  entitled  to  the  like  fees  as  in  cases  of  appraisements 
under  the  laws  of  the  state."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  239 ;  3  U.  S.  Comp.  Stats.  1916,  §  1639.) 

Manual — 20 


§§  660-662,  Ch.  25    MANUAL  OF  FEDERAL  PROCEDURE. 


CHAPTER  25. 

A  SUIT  IN  EQUITY— SUMMARY. 

SEC. 

660.  The  Bill. 

661.  Precipe  and  Subpoena. 

662.  Discovery — Interrogatories  by  Plaintiff. 

663.  Depositions  Under  Order  of  Court. 

664.  Return  of  Subpoena. 

665.  Time  for  Defensive  Pleading. 

666.  Hearing  of  Motion  to  Dismiss. 

667.  Time  for  Answer  After  Overruling  Motion  to  Dismiss. 

668.  Time  for  Answer  to  Amended  Bill. 

669.  Issue — When  No  Counterclaim  or  Setoff. 

670.  Discovery — Interrogatories  by  Defendant. 

671.  Depositions  in  Special  Cases  After  Filing  the  Bill  Before  Issue  Joined. 

672.  "Counterclaim — Time  for  Serving  Copy  on  Other  Defendants. 

673.  Motion  to  Strike  Out  Defense. 

674.  Time  for  Reply. 

675.  Issue  When  Counterclaim  or  Setoff  is  Pleaded. 

676.  Trial  Calendar. 

677.  Depositions  After  Case  on  Trial  Calendar. 

678.  Continuances. 

679.  Reinstatement  of  Cases  Dropped  from  Calendar — Time  for. 

§660.  The  Bill  (chapter  26,  below).  After  preparing  a  bill 
in  equity  in  conformity  with  Rule  25  (§  692,  below),  the  same 
may  be  filed  under  Rule  1,  providing  that  the  court  is  always 
open  for  such  purposes. 

§661.  Precipe  and  Subpoena  (chapter  34,  below).  Under 
Rule  12,  whenever  a  bill  is  filed,  and  not  before,  the  clerk  shall 
issue  the  process  of  subpoena  for  defendant  thereon  as  of 
course,  on  the  application  of  plaintiff.  Time  for  return  of  sub- 
poena is  twenty  days  from  issuance.  (Rule  12.) 

§  662.  Discovery — Interrogatories  by  Plaintiff  (chapter  43, 
below).  Under  Equity  Rule  58,  the  plaintiff,  at  any  time  after 


307  A  SUIT  IN  EQUITY — SUMMARY.       Ch.  25,  §§  G63-668 

filing  the  bill,  and  not  later  than  twenty-one  days  after  the 
joinder  at  issue,  may  file  written  interrogatories  for  discovery  of 
facts  and  documents  material  to  the  issue. 

§  663.  Depositions  Under  Order  of  Court  (chapter  48,  below). 
Rule  47  specifies  the  time  of  taking  depositions,  and  makes  an 
exception  as  follows: 

"Unless  otherwise  ordered  by  the  court  or  judge  for  good 
cause  shown."  Under  this  exception  it  seems  that  depositions 
may  be  taken  at  any  time  after  filing  the  bill,  even  before  issue 
is  joined,  but  ordinarily  depositions  cannot  be  taken  until  after 
issued  is  joined.  (See  §  671,  below.) 

§664.  Return  of  Subpoena.  Under  Equity  Rule  12,  the 
subpoena  is  returnable  into  the  clerk's  office  twenty  days  from 
the  issuing  thereof. 

§  665.  Time  for  Defensive  Pleading  (chapters  35  and  36  be- 
low). Under  Equity  Rules  12  and  16,  unless  the  time  shall  be 
enlarged  for  cause  shown  by  a  judge  of  the  court,  defendant 
must  file  his  answer  or  other  defense  to  the  bill  in  the  clerk's 
office  on  or  before  the  twentieth  day  after  service,  excluding  the 
day  thereof. 


Hearing  of  Motion  to  Dismiss  (chapter  39,  below). 
Under  Equity  Rule  29,  if  the  defendant  move  to  dismiss  the  bill 
or  any  part  thereof  the  motion  may  be  set  down  for  hearing 
by  either  party  upon  five  days'  notice. 

§  667.  Time  for  Answer  After  Overruling  Motion  to  Dismiss. 
Under  Equity  Rule  29,  if  the  motion  to  dismiss  be  denied,  the 
answer  shall  be  filed  within  five  days  thereafter. 

§668.  Time  for  Answer  to  Amended  Bill.  Under  Equity 
Rule  32,  the  defendant  shall  answer  an  amendment  to  the  bill 


§§  G69-672,  Ch.  25    MANUAL  OP  FEDERAL  PROCEDURE.  308 

made  after  answer  is  filed,  within  ten  days  after  that  on  which 
the  amendment  or  amended  bill  is  filed  unless  the  time  is  en- 
larged or  otherwise  ordered  by  the  judge  of  the  court. 

§669.  Issue  —  When  No  Counterclaim  or  SetofT.  Under 
Equity  Rule  31,  unless  the  answer  assert  a  setoff  or  counter- 
claim, no  reply  shall  be  required  without  special  order  of  the 
court  or  judge,  but  the  cause  shall  be  deemed  at  issue  upon  the 
filing  of  the  answer.  If  a  setoff  or  counterclaim  be  filed,  pre- 
sumably the  case  is  at  issue  upon  filing  the  reply.  (See  §  675, 
below.) 

§  670.  Discovery — Interrogatories  by  Defendant  (chapter  43, 
below).  Under  Equity  Rule  58,  the  defendant  at  any  time  after 
filing  his  answer  not  later  than  twenty-one  days  after  joinder 
of  issue  may  file  interrogatories  in  writing  for  the  discovery  of 
facts  and  documents  material  to  his  defense  of  the  cause. 

§  671.  Depositions  in  Special  Cases  After  Filing  the  Bill  Be- 
fore Issue  Joined.  Under  Rule  54,  as  a  general  rule,  deposi- 
tions under  Revised  Statutes,  §§  863,  865,  866  and  867,  are  to 
be  taken  after  cause  is  at  issue,  and  under  Rule  47  depositions 
are  only  taken  for  good  and  exceptional  cause  after  the  cause 
is  at  issue,  but  in  Equity  Rule  47  an  exception  is  provided  as 
follows : 

"...  'All  depositions  taken  tinder  a  statute,  or  under 
any  such  order  of  court,  shall  be  taken  and  filed  as  follows, 
unless  otherwise  ordered  by  the  court  or  judge  for  good  cause 
shown;  ..." 

Mention  is  made  of  the  subject  here  in  order  to  call  attention 
to  this  exception  permitting  depositions  to  be  taken  before  issue 
is  joined. 

§  672.  Counterclaim — Time  for  Serving  Copy  on  Other  De- 
fendants (chapter  45,  below).  Under  Equity  Rule  31,  if  the 


309  A  SUIT  IN  EQUITY — SUMMARY.       Cll.  25,  §§  673-G77 

counterclaim  is  one  which  affects  the  rights  of  other  defendants, 
they  or  their  solicitors  shall  be  served  with  a  copy  of  the  same 
within  ten  days  from  filing  thereof. 

§673.  Motion  to  Strike  Out  Defense  (chapter  46,  below). 
Under  Equity  Rule  33,  if  an  answer  set  up  an  affirmative  de- 
fense, setoff,  or  counterclaim,  the  plaintiff  may,  upon  five  days' 
notice,  or  such  further  time  as  the  court  may  allow,  test  the  suffi- 
ciency of  the  same  by  motion  to  strike  out. 

§674.  Time  for  R'eply  (chapter  47,  below).  If  a  reply  is 
required  to  a  setoff  or  counterclaim  pleaded  in  the  answer, 
plaintiff  shall  reply  under  Equity  Rule  31,  within  ten  days  after 
filing  of  the  answer  unless  a  longer  time  be  allowed  by  the  court 
or  judge.  Other  defendants  should  reply  ten  days  after  ser- 
vice of  a  copy  of  the  answer  upon  them. 

§  675.  Issue  When  Counterclaim  or  Setoff  is  Pleaded.  Unless 
the  answer  assert  a  setoff  or  counterclaim,  the  cause  shall  be 
deemed  at  issue  upon  the  filing  of  the  answer,  but  if  the  answer 
include  a  setoff  or  counterclaim,  presumably  the  cause  would  be 
at  issue  upon  the  filing  of  the  reply. 

§676.  Trial  Calendar  (chapter  49,  below).  After  the  time 
has  elapsed  for  taking  and  filing  depositions  under  these  rules, 
the  case  shall  be  placed  on  the  trial  calendar  under  Equity 
Rule  56. 

§  677.  Depositions  After  Case  on  Trial  Calendar.  Under 
Equity  Rule  56,  no  depositions  shall  be  taken  after  the  case  is 
placed  upon  the  trial  calendar,  except  upon  some  strong  reason 
shown  by  affidavit  disclosing  why  the  testimony  of  the  witness 
cannot  be  had  orally  on  the  trial,  why  his  deposition  has  not  been 
before  taken,  and  setting  out  the  testimony  which  it  is  expected 
the  witness  will  give. 


§§  678-679,  Ch.  25     MANUAL.  OP  FEDERAL  PROCEDURE.  310 

§  678.  Continuances.  Under  Rule  57,  a  case  may  be  passed 
over  to  another  day  of  the  same  term  by  consent  of  the  counsel 
or  order  of  the  court. 

A  case  shall  not  be  continued  beyond  the  term,  save  in  excep- 
tional cases  by  order  of  the  court  upon  good  cause  shown  by  af- 
fidavit and  upon  such  terms  as  the  court  shall  in  its  discretion 
impose,  and  the  case  shall  be  dropped  from  the  trial  calendar 
subject  to  reinstatement  within  one  year  on  application  to  the 
court  by  either  party,  in  which  event  it  shall  be  heard  on  the 
earliest  convenient  day. 

§  679.  Reinstatement  of  Cases  Dropped  from  Calendar — Time 
for.  Under  Equity  Rule  57,  unless  a  case  dropped  from  the 
trial  calendar  is  reinstated  within  the  year,  the  suit  shall  be  dis- 
missed without  prejudice  to  a  new  one. 


to  rmjjf 


oil  THE  BILL  IN  EQUITY.  Ch.  26,  §  690 


CHAPTER  26. 
THE  BILL  LN  EQUITY. 

SBO. 

690.  General  Statement. 

691.  Differences  Between  State  and  Federal  Statement  of  Cause  of  Action. 

692.  Contents  of  a  Bill  in  Equity— Equity  Bule  25. 

693.  Caption  of  the  Bill. 

694.  Citizenship  and  Eesidence  of  Parties. 

695.  Jurisdictional  Grounds. 

696.  Statement  of  Ultimate  Facts — The  Cause  of  Action. 

697.  Proper  Parties. 

698.  The  Prayer  of  the  Bill. 

699.  Signing  the  Bill. 

700.  Verifying  the  Bill. 

§  690.  General  Statement.  The  initial  pleading  in  a  suit  in 
equity  is  the  bill.  Its  filing  and  not  the  issuance  of  summons  is 
the  beginning  of  the  suit  in  equity.  (Waldo  v.  Wilson  (4th  Cir.), 
231  Fed.  654.) 

The  bill  is  analogous  to  the  declaration  in  an  action  at  law. 
While  in  the  past  the  established  formality  of  its  structure  placed 
it  in  a  class  apart  from  most  modern  pleadings,  and  while  from 
the  very  nature  of  our  federal  practice  this  is  still  true  to  some 
extent,  there  is  nevertheless  manifested  in  the  equity  rules  that 
took  effect  February  1,  1913,  a  strong  tendency  toward  greater 
simplicity  and  expedition  of  pleading,  and  toward  conformity 
with  the  rules  of  pleading  governing  the  form  and  structure 
of  the  complaint  in  a  civil  action,  as  adopted  in  the  various 
states  under  the  reform  or  code  procedure. 

The  supreme  court  of  the  United  States,  by  Equity  Rule  18, 
has  abrogated  technical  forms  of  pleading  by  providing:  "Unless 
otherwise  prescribed  by  statute  or  these  rules,  the  technical  forms 
of  pleadings  in  equity  are  abolished."  (3  U.  S.  Comp.  Stats. 
1916,  §1536,  p.  2502;  Foster's  Federal  Practice,  5th  ed.,  p.  511; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  36.)  "'  ;' 


§  690,  Ch.  26  MANUAL  OF  FEDERAL  PROCEDURE.  312 

The  rules  have  so  simplified  the  practice  that  practitioners 
have  hesitated  to  avail  themselves  of  the  advantages  of  the  new 
procedure.  The  remarks  of  the  Judge  in  a  recent  case  l  are  so 
pertinent  that  they  are  quoted  below: 

"What  may  be  observed  with  respect  to  the  pleadings  in  this 
case  may  be  applied  to  many  cases  which  have  been  brought 
since  the  adoption  of  the  new  equity  rules,  for  it  has  become 
apparent  that  solicitors  in  equity,  and  especially  solicitors  in 
patent  causes,  have  hesitated  to  conform  to  the  provisions  of 
those  rules. 

"Rule  25,  which  relates  to  the  contents  of  a  bill  of  com- 
plaint, is  one  which  should  be  recognized  by  the  profession 
as  adapted,  not  only  for  the  relief  of  the  courts,  but  for  the 
relief  of  counsel.  .  .  . 

"It  is  unnecessary  in  this  case  to  determine  whether  or  not, 
jsince  the  new  equity  rules,  a  plaintiff  may  safely  omit  the 
averments  of  compliance  with  all  conditions  precedent  to  the 
grant  of  a  patent,  but  it  is  well  to  have  in  mind  as  a  suggestion 
.  .  .  that,  if  the  bill  avers  that  the  patentee  or  plaintiff  'is  the 
original  and  first  inventor  of  a  new  and  useful  improvement 
and  invention,  .  .  .  which  are  fully  and  particularly  de- 
scribed in  the  letters  patent  hereinafter  mentioned,  and 
which  had  not  been  known  or  used  before  his  said  invention,' 
a  great  deal  of  verbiage  common  in  the  bills  in  patent  causes 
can  be  eliminated. 

"The  general  averment  that  an  invention  had  not  been 
known  or  used  before  is  certainly  not  helped  by  limiting  such 
averment  to  this  country,  and  then  averring  that  it  had  not 
been  patented  or  described  in  this  or  any  foreign  country, 
that  it  had  not  been  for  more  than  two  years  prior  to  the 
date  of  his  application  described  or  in  public  use  or  on  sale  in 
this  country,  and  that  it  had  not  been  abandoned  to  the  public. 
The  detailed  averments  thus  briefly  expressed  are  altogether 
not  any  more  forceful  than  the  brief  averment  hereinabove 
quoted  from  the  case  last  cited^ 

"The  prayers  of  the  bill  in  this  case  are  such  as  were  com- 
mon prior  to  the  adoption  of  the  equity  rules.  They  include 
prayers  that  the  defendant  be  decreed  to  pay  the  costs,  and 

i  Pittsburgh  Water  Heater  Co.  v.  Beler  Water  Heater  Co.  (W.  D.  Pa.), 
222  Fed.  950-952. 


313  THE  BILL  IN  EQUITY.  Ch.  26,  §  690 

that  the  court  grant  a  writ  of  subpoena,  and  that  the  de- 
fendant be  bound  to  answer,  waiving,  however,  answer  under 
oath. 

"The  equity  rules  have  sufficient  provisions  as  to  costs  to 
justify  omission  of  a  prayer  for  the  imposition  of  costs. 
With  respect  to  the  prayer  for  a  subpoena,  Rule  12  provides 
that  the  clerk  shall  issue  the  same  whenever  a  bill  is  filed 
upon  application  by  the  plaintiff.  No  prayer  for  process 
is  necessary,  because  it  is  not  issued  by  an  order  of  the  court, 
but  by  the  clerk,  under  the  rule.  The  prayer  that  the  defend- 
ant be  required  to  answer  is  not  necessary,  except  under  Rule 
40,  relating  to  nominal  parties,  'unless  the  plaintiff  specially 
require  him  to  do  so  by  prayer,'  for  every  defendant,  other 
than  a  nominal  party,  is  required  to  answer  or  take  some  other 
step,  if  he  would  not  have  a  decree  against  him.  The  waiver 
of  an  answer  under  oath  seems  wholly  unnecessary,  because 
the  equity  rules  apparently  do  not  require  any  answer  to  be 
made  under  oath.  It  cannot  be  inferred  that  an  answer 
should  be  made  under  oath,  when  the  bill  is  not  required  to 
be  verified  by  the  oath  of  the  plaintiff,  except  where  some 
special  relief  pending  the  suit  be  required.  The  answer  no 
longer  appears  to  be  the  expression  of  the  results  of  search- 
ing the  conscience  of  the  defendant.  The  method  pointed 
out  in  Rule  58  for  procuring  discovery  by  means  of  interroga- 
tories is  now  the  method  of  searching  the  conscience  of  the 
opposite  party.  That  rule  provides  that  the  answers  to  the 
interrogatories  shall  be  in  writing  under  oath  and  signed  by 
the  party.  It  seems,  therefore,  a  proper  inference  from  the 
provisions  of  the  equity  rules  with  respect  to  oaths  to  por- 
tions of  the  record  other  than  the  answer,  and  the  omission 
of  the  requirement  of  an  oath  to  an  answer,  that  an  answer 
in  equity  need  not  now  be  made  under  oath. 

"The  foregoing  observations  are  more  by  way  of  sugges- 
tion to  the  profession  than  as  laying  down  rules  which  should 
govern  in  the  preparation  of  a  bill.  The  court  is  not  unmind- 
ful of  the  fact  that  Rule  25  is  not  an  absolute  direction  of 
all  that  a  bill  should  contain,  but  that  it  is  a  statement  of 
what  shall  be  sufficient  to  sustain  a  bill.  If  the  matters 
therein  prescribed  are  contained  in  the  bill,  the  bill  is  a  good 
bill,  although  other  matters  may  be  embraced  therein.  The 
aim  of  the  rule  is  brevity  and  simplicity  of  allegations  in 
bills,  and  the  profession  should  lend  their  aid  to  such  end." 


§§  691-692,  Ch.  26    MANUAL  OP  FEDERAL  PROCEDURE.  314 

§  691.  Differences  Between  State  and  Federal  Statement  of 
Cause  of  Action.  A  bill  in  equity  differs  from  the  statement 
of  a  similar  cause  of  action  in  the  state  court  in  these  five  main 
points, — (1)  The  citizenship  and  residence  of  each  party  must 
be  shown;  (2)  a  ground  of  federal  jurisdiction  must  be  set 
out;  (3i)  in  cases  where  the  amount  in  controversy  is  material 
this  must  be  distinctly  averred;  (4)  a  ground  of  equitable  juris- 
diction must  appear;  (5)  the  bill  need  not  be  verified  unless 
special  relief,  pending  the  suit,  is  desired. 

The  federal  courts  being  courts  of  limited  jurisdiction,  a 
ground  of  jurisdiction  must  be  made  to  appear,  which,  in  cases 
of  concurrent  jurisdiction  with  state  courts,  is  either  diverse 
citizenship  or  a  federal  question,  and  in  both  such  cases  it  must 
also  appear  that  the  amount  in  controversy,  exclusive  of  interest 
and  costs,  must  exceed  the  sum  or  value  of  three  thousand  dol- 
lars, unless  excepted  under  §24,  Jud.  Code  (chapter  8,  above). 

The  citizenship  of  each  party  must  necessarily  be  shown  where 
the  basis  of  the  court's  jurisdiction  is  diverse  citizenship,  and, 
for  the  sake  of  uniformity,  and  as  bearing  oftentimes  on  the 
question  of  venue,  this  is  also  required  where  the  ground  of 
jurisdiction  is  a  federal  question.  (Venue,  chapter  4,  above.) 

§  692.     Contents  of  a  Bill  in  Equity— Equity  Rule  25. 

"Bill  of  complaint — Contents.  Hereafter  it  shall  be  suf- 
ficient that  a  bill  in  equity  shall  contain,  in  addition  to  the 
usual  caption: 

"First,  the  full  name,  when  known,  of  each  plaintiff  and 
defendant,  and  the  citizenship  and  residence  of  each  party, 
If  any  party  be  under  any  disability  that  fact  shall  be  stated. 

"Second,  a  short  and  plain  statement  of  the  grounds  upon 
which  the  court's  jurisdiction  depends. 

"Third,  a  short  and  simple  statement  of  the  ultimate  facts 
upon  which  the  plaintiff  asks  relief,  omitting  any  mere  state- 
ment of  evidence. 

"Fourth,  if  there  are  persons  other  than  those  named  as  de- 
fendants who  appear  to  be  proper  parties,  the  bill  should 
state  why  they  are  not  made  parties — as  that  they  are  not 


315  THE  BILL  IN  EQUITY.  Ch.  26,  §§  693-694 

within  the  jurisdiction  of  the  court,  or  cannot  be  made  parties 
without  ousting  the  jurisdiction. 

"Fifth,  a  statement  of  and  prayer  for  any  special  relief 
pending  the  suit  or  on  final  hearing,  which  may  be  stated  and 
sought  in  alternative  forms.  If  special  relief  pending  the 
suit  be  desired,  the  bill  should  be  verified  by  the  oath  of  the 
plaintiff,  or  some  one  having  knowledge  of  the  facts  upon 
which  such  relief  is  asked."  (3  U.  S.  Comp.  Stats.  1916, 
§1536,  p.  2504;  Foster's  Federal  Practice,  5th  ed.,  p.  469 
et  seq. ;  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  268.) 

§  693.  Caption  of  the  Bill.  Equity  Rule  25  makes  five  speci- 
fications for  framing  a  bill  in  equity  "in  addition  to  the  usual, 
caption." 

The  title  of  the  court  and  the  title  of  the  action  constitute  the 
"usual  caption"  mentioned  in  Rule  25  of  the  bill,  but  are  not 
under  the  rules  a  part  of  it  so  as  to  cure  defects  of  the  statement 
of  the  cause  of  action. 

It  may  be  set  out  in  the  following  manner: 

In  the  District  Court  of  the  United  States  for  the  District  of  , 

Division  Sitting  at . 

John  Doe, 

Plaintiff, 


v. 


Richard  Roe, 

Defendant. 


COMPLAINT  IN  EUQITY. 


§  694.  Citizenship  and  Residence  of  Parties.  It  has  always 
been  a  requirement  of  bills  in  equity  in  the  federal  courts  that 
"the  full  name,  when  known,  of  each  plaintiff  and  defendant, 
and  the  citizenship  and  residence  of  each  party,"  should  be  set 
out,  the  purpose  being  to  show  jurisdiction  when  the  same  de- 
pends upon  diversity  of  citizenship  and  when  the  ground  of 
jurisdiction  is  a  federal  question  for  the  sake  of  uniformity,  and 
in  both  cases  to  protect  the  parties  by  enabling  them  to  locate 
and  identify  each  other  with  certainty  with  a  view  to  compelling 
obedience  to  any  order  of  the  court,  and  to  inform  the  court  as 


§  695,  Ch.  26          MANUAL  OF  FEDERAL  PROCEDURE.  316 

well  as  the  opposing  party  of  the  conditions  and  disabilities,  if 
any,  of  the  respective  parties,  and  as  bearing  in  many  cases 
on  the  question  of  venue. 

I  Following  the  caption  is  the  statement  of  the  citizenship  and 
residence  of  each  party,  as  follows: 

"John.  Doe,  a  citizen  of  the  state  of  — ,  residing  in  County  of  said 

state,  alleges,  as  his  bill  of  complaint  against  Richard  Roe,  a  citizen  of  the 
state  of and  residing  in County,  in  said  state,  as  follows: 

If  one  or  both  of  the  parties  is  a  corporation,  it  must  be  desig- 
nated as  such.  (Sun  Printing  &  Pub.  Assn.  v.  Edwards,  194 
U.  S.  377,  48  L.  Ed.  1027,  24  Sup.  Ct.  696.) 

"Duly  organized  and  existing  under  the  laws  of  the  state  of  ,  [desig- 
nating the  state],  and  with  its  principal  place  of  business  at [city  and 

county]  and  a  citizen  of  said  state." 

A  bill  setting  forth  that  plaintiffs  were  acting  "in  behalf  of 
such  other  creditors  of  and  claimants  against  the  defendants  or 
any  of  them,  as  may  desire  relief  similar  to  that  prayed  for 
herein  and  may  intervene  and  become  parties  thereto,"  was  held 
to  violate  the  rule  in  not  setting  forth  the  names,  citizenship  and 
residence  of  such  parties.  (State  of  Maine  Lumber  Co.  v.  King- 
field  Co.  (Conn.),  218  Fed.  902.) 

§695.  Jurisdictional  Grounds.  "A  short,  plain  statement 
of  the  facts  upon  which  the  court's  jurisdiction  depends"  refers 
to  the  grounds  of  federal  jurisdiction  which  must  affirmatively 
appear  and  must  be  accurate  and  explicit,  leaving  nothing  for 
inference.  (Lownsdale  v.  Gray's  Harbor  Boom  Co.,.  117  Fed. 
983.) 

If  the  Jurisdictional  ground  is  diversity  of  citizenship,  the 
particular  state  and  county  of  which  each  party  is  a  citizen 
must  be  set  forth  by  name,  and  it  must  be  alleged  that  the  party 
is  a  "citizen,"  not  merely  a  "resident,"  or  "inhabitant,"  thereof. 
(Denny  v.  Pironi,  141  U.  S.  121,  123,  35  L.  Ed,  657,  11  Sup.  Ct. 
966.) 


317  THE   BILL  IN    EQUITY.  Ch.  26,  §  696 

In  these  cases,  too,  the  venue  "of  the  action  is  placed  by  statute, 
in  the  district  of  the  plaintiffs  or  defendant's  residence,  and  it 
must  therefore  be  alleged  that  the  suit  is  brought  in  the  district 
court  of  the  district  of  residence.  (Miller  v.  Pennsylvania  R. 
Co.,  91  Fed.  298.) 

It  must  be  remembered  that  where  the  jurisdiction  depends 
on  diversity  of  citizenship  the  test  of  jurisdiction  is  citizenship, 
not  residence,  or  habitation,  and  nothing  short  of  an  allegation  of 
citizenship  will  suffice. 

As  to  allegations  of  a  federal  question,  see  chapter  6. 

So  important  is  the  affirmative  showing  of  these  jurisdictional 
facts  in  the  bill,  that  no  appeal  will  be  entertained  unless  they 
plainly  appear  by  the  record,  even  though  no  objection  be  raised 
in  the  court  below.  An  insufficient  averment  of  jurisdictional 
facts  may,  however,  be  amended.  (Johnson  v.  F.  C.  Austin  Mfg. 
Co.,  76  Fed.  616 ;  Carson  v.  Dunham,  121  U.  S.  421,  427,  30  L.  Ed. 
992,  994,  7  Sup.  Ct.  1030.) 

§  696.    Statement  of  Ultimate  Facts — The  Cause  of  Action. 

A  statement  of  the  cause  of  action  showing  the  grounds  of  equi- 
table relief  should  be  a  "short  and  simple  statement  of  the  ulti- 
mate facts  upon  which  the  plaintiff  asks  relief,  omitting  any  mere 
statement  of  evidence." 

Commenting  on  this  clause  the  circuit  court  of  appeals  (2d  Cir.), 
Crim  v.  Rice,  232  Fed.  573,  says: 

"The  purpose  of  the  rule  is  manifest,  and  it  is  unnecessary 
to  insert  in  a  bill  extraneous  matter,  which  cannot  afford 
information  either  to  the  court  or  opposing  litigants.  In  this 
bill,  many  allegations  are  either  repetitions  or  are  phrased  in 
language  foreign  to  properly  drawn  •  pleadings.  Thus  we 
find  that  a  defendant  was  'the  agent,  representative,  straw- 
man,  employee,  dummy,  tool,  and  operator  of  the  bankrupt 
defendants';  that  defendants  were  guilty  of  'designing,  con- 
triving, and  conspiring  to  swindle,  cheat,  deceive,  hinder, 
delay,  and  defraud'  creditors;  that  certain  acts  were  'de- 
vices, fences,  screens,  and  cloaks  and  legal  disguises';  that 


§  696,  Ch.  26          MANUAL  OF  FEDERAL  PROCEDURE.  318 

one  of  the  defendants  'has  been  an  active  participant,  di- 
rector, designer,  and  operator  and  conspirator';  that  certain 
banks  'have  escaped  publicity  and  criticism  by  the  authori- 
ties for  their  negligence  in  lending  money.'  .  .  . 

"If,  because  of  these  expressions  and  the  diffuse  character 
of  the  bill,  a  motion  had  been  made  under  Rule  29,  for  failure 
to  comply  with  Rule  25,  we  think  the  district  court  would  have 
been  justified  in  granting  the  motion  on  that  ground." 

But  since  a  bill  in  equity  is  required  to  state  only  the  ultimate 
facts,  a  court  should  be  cautious  not-  to  dismiss  a  bill  for  mere 
lack  of  fullness  of  detail  in~allegation.  It  is  not  expected  that 
the  bill  should  set  out  the  evidence  to  be  adduced.  (Clinchneld 
Coal  Corp.  v.  Steinman  (4th  Cir.),  217  Fed.  875,  133  C.  C.  A. 
585.) 

In  respect  to  this  clause  in  the  rule,  the  bill  in  equity  in  the 
federal  courts  differs  little,  if  any,  from  the  better  forms  required 
in  the  reformed  or  code  procedure. 

Ultimate  facts.  The  statement  of  the  plaintiff's  case  must  be 
composed  of  allegations  of  fact  only, — not  inferences  drawn  from 
facts,  or  mere  conclusions  of  law.  The  meaning  of  the  phrase 
"ultimate  facts,"  as  used  in  the  rule,  is  perhaps  best  explained 
by  the  last  clause  of  the  third  paragraph  of  the  rule  itself,  to  wit, 
— "omitting  any  mere  statement  of  evidence."  That  is  to  say, 
ultimate  facts  are  those  facts  upon  which  the  plaintiff's  case 
directly  depends,  and  which  are  to  be  proved  by  the  evidence.  A 
statement  of  the  ultimate  facts  is  a  statement  of  the  issues  in- 
volved,— not  of  the  evidence  available  to  prove  the  issues. 

These  ultimate  facts  should  be  alleged  in  positive  form,  not 
hypothetieally  or  by  way  of  recital,  although  it  has  been  held  that 
if  the  fact  appear  by^  necessary  implication,  the  pleading  is  not 
defective.  (Investor  Pub.  Co.  of  Mass.  v.  Dobinson,  72  Fed.  603.) 

Allegations  on  information  and  belief  are  also  permitted  where 
the  facts  are  peculiarly  within  the  knowledge  of  the  defendant. 
(Leaven worth  v.  Pepper,  32  Fed.  718.) 

Thus  a  bill  may  properly  allege  on  information  and  belief,  in 
the  alternative,  that  defendant  had  actual  knowledge  or  con- 


319  THE  BILL  IN  EQUITY.  Ch.  26,  §  GOG 

structive  notice  of  an  essential  fact,  where  the  complainant  has 
no  means  of  knowing  the  facts  as  to  such  knowledge  or  notice. 
(Brady  v.  Reliance  Motion  Picture  Corp.  (S.  D.  N.  Y.),  232  Fed. 
259.) 

The  "short  and  simple  statement  of  ultimate  facts"  has  long 
been  the  end  in  view  in  drawing  bills  in  equity,  but  the  statement 
must  not  be  made  so  short  and  simple  as  to  omit  essential  allega- 
tions required  to  make  a  cause  of  action. 

Infringement  of  patent.  Under  previous  rules  it  has  been  held 
that  a  bill  in  a  suit  for  the  infringement  of  a  patent  must  not 
only  contain  an  allegation  of  the  due  issuance  of  the  patent,  but 
also  of  all  the  facts  upon  which  the  authority  to  so  issue  it  depends. 

The  new  rule  is  silent  as  to  the  necessity  of  these  conditions. 
The  matter  is  discussed  above,  §  690. 

Excusing  laches.  If  it  appears  from  the  bill  that  there  has 
been  delay  in  bringing  the  suit  so  that  the  defense  of  laches 
might  be  interposed,  it  becomes  necessary  to  anticipate  the  de- 
fense and  excuse  the  delay.  The  facts  constituting  the  excuse 
must  be  clearly  and  distinctly  alleged,  to  enable  the  court  to 
determine  whether  the  suit  has  been  prosecuted  with  due  dili- 
gence. 

Fraud.  It  is  also  a  well-established  rule  that  facts  constituting 
fraud,  accident  or  mistake  must  be  specifically  alleged.  Charges 
of  fraud  and  the  like  must  be  clearly  proved,  and  the  defendant 
is  entitled  to  be  informed  by  the  bill  as  to  the  exact  nature  of  the 
charges. 

Mere  adjectives  of  fraud  cannot  supply  the  proper  averments. 
(Rice  v.  Wilson  (Del.),  225  Fed.  159,  163.) 

Complete  statement.  The  statement  of  the  plaintiff's  case  is 
the  most  important  part  of  the  bill.  It  must  contain  all  the 
material  allegations  upon  which  the  plaintiff  relies.  It  must  state 
the  case  completely,  for  the  court  has  no  power  to  grant  relief 
not  shown  by  the  statement  to  be  within  the  issues. 


§§  697-698,  Ch.  26     MANUAL  OF  FEDERAL  PROCEDURE,  320 

§697.  Proper  Parties.  "If  there  are  persons  other  than 
those  named  as  defendants  who  appear  to  be  proper  parties,  the 
bill  should  state  why  they  are  not  made  parties, — as  that  they 
are  not  within  the  jurisdiction  of  the  court,  or  cannot  be  made 
parties  without  ousting  the  jurisdiction." 

Proper  parties  are  those  whose  interest  in  the  subject  matter 
of  the  litigation  may  be  conveniently  settled  by  making  them 
parties  thereto,  but  whose  presence  is  not  absolutely  essential  to 
a  final  determination  of  the  matter. 

Classification  of  parties.  In  Shields  v.  Barrow,  17  How.  130, 
15  L.  Ed.  158,  parties  are  classified  as:  "(1)  Formal  parties. 

(2)  Persons  having  an  interest  in  the  controversy  and  who  ought 
to  be  made  parties,  in  order  that  the  court  may  act  on  that  rule 
which  requires  it  to  decide  upon  and  finally  determine  the  entire 
controversy,  and  do  complete  justice  by  adjusting  all  the  rights 
involved  in  it.     These  persons  are  commonly  termed  'necessary 
parties,'  but  if  their  interests  are  separable  from  those  of  the 
parties  before  the  court,  so  that  the  court  can  proceed  to  a  decree, 
and  do  complete  and  final  justice  without  affecting  other  persons 
not  before  the    court,  the    latter  are    not    indispensable  parties. 

(3)  Parties  who  not  only  have  an  interest  in  the    controversy, 
but  an  interest  of  such  nature  that  a  final  decree  cannot  be  made 
without  either  affecting  that  interest,  or  leaving  the  controversy 
in  such  a  condition  that  its  final  determination  may  be  wholly 
inconsistent  with  equity  and  good  conscience."     (16  Cyc.   190.) 

It  has  long  been  held,  and  was  formerly  a  part  of  old  Equity 
Rule  47,  and  is  now  expressly  provided  by  Rule  39,  that  the  court 
may,  in  its  discretion,  determine  the  suit  without  the  presence 
of  proper  parties,  so  that  the  purpose  of  the  provision  of  Rule  25, 
above  quoted,  is  undoubtedly  to  place  clearly  before  the  court 
the  reason,  if  any,  for  the  nonjoinder  of  such  parties,  in  order  that 
the  court  may  exercise  its  discretion  with  regard  thereto. 

§  698.  The  Prayer  of  the  BiU.  "A  statement  of,  and  prayer 
for  any  special  relief  pending  the  suit,  or  upon  final  hearing, 


321  THE  BILL  IN  EQUITY.  Ch.  26,  §  698 

may  be  stated  and  sought  in  alternative  forms.  If  special  relief 
pending  the  suit  be  desired,  the  bill  should  be  verified  by  the 
oath  of  the  plaintiff,  or  someone  having  knowledge  of  the  facts 
upon  which  the  relief  is  asked." 

The  prayer  for  process  is  no  longer  necessary  inasmuch  as 
Equity  Rule  12  provides  that  "whenever  a  bill  is  filed,  the  clerk 
shall  issue  the  process  of  subpoena  thereon,  as  of  course,  upon  the 
application  of  the  plaintiff." 

It  would  also  seem  that  a  general  prayer  for  relief  is  no  longer 
necessary,  although  the  cautious  pleader  will  undoubtedly  con- 
tinue to  incorporate  it  in  his  bill,  there  being  no  express  prohibi- 
tion of  its  use,  and  in  view  of  the  fact  that  a  general  prayer  for 
relief  has  been  held  under  former  rules  sufficient  to  save  the  com- 
plaint from  attack  by  demurrer  when  the  facts  were  sufficiently 
alleged,  but  the  pleader  had  mistaken  the  special  relief  to  which 
he  was  entitled. 

"Whether  relief  to  be  given  by  the  court  must  be  confined 
to  that  thus  asked  does  not  appear  from  the  rule,  nor  can  we 
learn  from  the  rule  itself  whether  the  scope  of  a  plaintiff's 
action  is  to  be  determined  by  his  prayers."  (Bernheiin  v. 
Louisville  Property  Co.  (N.  D.  Ky.),  221  Fed.  273,  278.) 

But  the  general  prayer  for  relief  cannot  give  the  power  to  grant 
relief  other  than  that  shown  to  be  due  the  plaintiff  under  the  facts 
alleged,  and  it  is  undoubtedly  better  pleading  under  the  new  rules 
to  ask  for  all  the  relief  desired  by  appropriate  special  prayers 
which,  as  provided  in  the  rules,  may  be  stated  and  sought  in 
alternative  forms.  Commenting  on  the  rule  the  court  said: 

"It  may  be  unnecessary  to  pray  specifically  for  relief 
against  infringement  to  which  the  facts  pleaded  would  show 
a  right,  but  it  would  4)e  safer  for  the  complainant  to  amend 
its  bill  in  this  respect,  though  the  bill  contains  a  prayer  for 
general  relief."  (Nikola  Tesla  Co.  v.  Marconi  Wireless  Tel. 
Co.  (S.  D.  N.  Y.),  227  Fed.  903,  905.) 

This  provision,  authorizing  prayers  for  relief  in  alternative 
forms,  while  it  has  never  before  appeared  in  the  rules  has  been 

Mant»l— 11 


§  698,  Ch,  2G         MANUAL  OF  FEDERAL  PROCEDURE.  822 

held  to  be  permissible  in  former  adjudicated  cases.     (Jones  .v. 
Missouri-Edison  Electric  Co.,  144  Fed.  765,  75  C.  C.  A.  631.) 

In  Boyd  v.  New  York  &  H.  R.  Co.  (S.  D.  N.  Y.),  220  Fed.  174, 
178,  the  judge  comments  as  follows: 

"There  is  one  criticism  of  the  bill,  mentioned  in  argu- 
ments and  briefs,  to  which  preliminary  consideration  may  be 
given.  It  is  urged  that  the  bill  contains  two  inconsistent 
'causes  of  action.'  It  does,  in  my  opinion,  show  inconsistent 
prayers  for  relief,  because  it  demands  (1)  the  utter  de- 
struction of  the  lease  of  1873,  as  obnoxious  to  the  Sherman 
Act,  and  also  (2)  the  preservation  of  the  present  status  of 
Harlem  stock,  which  depends  wholly  upon  the  very  lease 
sought  to  be  annulled. 

"But  it  is  not  thought  that  such  "inconsistency  is  either 
fatal  to  the  bill,  or  constitutes  a  serious  blemish  thereupon; 
and  for  two  reasons:  First,  the  prayers  of  a  bill  are  not 
parts  of  the  cause  of  action  therein  set  forth;  and,  second, 
inconsistent  and  even  contradictory  prayers  are  permitted  by 
Equity  Rule  25,  which  allows  relief  to  'be  stated  and  sought 
in  alternative  forms.' 

"  'Alternative'  means  'mutually  exclusive'  (Cent.  Diet.), 
and  no  phrase  could  more  happily  describe  the  prayers  of 
this  bill.  'Cause  of  action'  has  not  been  found  easy  of 
definition.  But  Professor  Pomeroy's  effort,  that  it  is  'com- 
posed of  the  right  of  the  plaintiff  and  the  obligation,  duty 
or  wrong  of  the  defendant;  and  these  combined,  it  is  suffi- 
ciently accurate  to  say,  constitute  a  cause  of  action,'  has 
been  adopted  in  Veeder  v.  Baker,  83  N.  Y.  156,  at  page  160; 
while  the  shorter  statement  of  Durham  v.  Spence,  L.  R.  6  Ex. 
46,  that  it  'is  that  which  produces  the  necessity  for  bringing 
an  action'  has  been  approvingly  quoted  in  Shelby 'Steel  Tube 
Co.  v.  Burgess  Gun  Co.,  8  App.  Div.  444,  at  page  448,  40 
N.  Y.  Supp.  871,  at  page  873. 

"In  the  light  of  these  definitions,  I  find,  in  plaintiff's 
'statement  of  the  ultimate  facts  upon  which'  they  ask  relief, 
only  one  cause  of  action;  for  their  right  is  single,  viz.,  to 
preserve  their  property,  the  duty  of  the  defendants  is  to  co- 
operate in  such  preservation;  and  the  wrong  alleged  is  a 
threatened  trespass  upon  that  right. 


323  .  THE  BILL  IN   EQUITY.  Ch.  26,  §§  699-700 

"The  prayers  are  but  the  opinions  of  the  plaintiffs  as  to  the 
proper  method  of  redress,  and  inconsistency  there  is  harm- 
less. The  court  must  select  that  method  which  is  appropriate 
and  lawful,  and  such  procedure  as  is  illustrated  by  this  motion 
will  produce  a  selection  with  the  minimum  expenditure  of 
time  and  expense." 

§  699.     Signing  the  Bill. 

Equity  Ride  24.  "Every  bill  or  other  pleading  shall  be 
signed  individually  by  one  or  more  solicitors  of  record,  and 
such  signatures  shall  be  considered  as  a  certificate  by  each 
solicitor  that  he  has  read  the  pleading  so  signed  by  him ;  that 
upon  the  instructions  laid  before  him  regarding  the  case  there 
is  good  ground  for  the  same ;  that  no  scandalous  matter  is  in- 
serted in  the  pleading  and  is  not  interposed  for  delay." 
(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2503;  Foster's  Federal 
Practice,  5th  ed.,  pp.  561,  683,  713,  753,  772;  Simkins'  Fed- 
eral Equity  Suit,  3d  ed.,  pp.  134,  286,  349,  401,  425.) 

The  purpose  of  the  rule  is  to  insure  good  faith.  It  does  not  in 
any  respect  vary  the  relation  of  counsel  and  client.  It  does  not 
make  counsel  who  signs  the  bill  a  counsel  of  record,  who  cannot  be 
changed  except  on  terms,  as  in  the  case  with  the  solicitor  of  rec- 
ord, nor  entitle  him  to  a  lien  on  the  decree  for  his  services.  His 
remedy  is  at  law.  (Goodwin  Film  &  Camera  Co.  v.  Eastman 
Kodak  Co.  (2d  Cir.),  222  Fed.  249,  251,  138  C.  C.  A.  71.) 

§  700.  Verifying  the  Bill.  The  bill  need  not  be  sworn  to  by 
the  plaintiff,  unless  it  is  a  stockholder's  bill  under  Rule  27  or  un- 
less some  special  relief  such  as  an  injunction  or  writ  of  ne  exeat 
be  desired,  pending  the  suit,  in  which  event  it  must  be  verified  as 
required  by  Rule  25  quoted  above. 

The  bill  then  becomes  inHie  nature  of  an  affidavit,  upon  which 
proceedings  for  the  issuance  of  the  writs  granted  may  be  based. 

If  the  bill  is  required  to  be  verified,  it  is  provided : 

Equity  Rule  36.  "Every  pleading  which  is  required  to  be 
sworn  to  by  statute  or  these  rules  may  be  verified  before  any 
justice  or  judge  of  any  court  of  the  United  States  or  of 


§  700,  Ch.  26  •  MANUAL  OP  FEDERAL  PROCEDURE.  324 

any  state  or  territory,  or  of  the  District  of  Columbia,  or  any 
clerk  of  any  court  of  the  United  States,  or  of  any  territory, 
or  of  the  District  of  Columbia,  or  any  notary  public." 
(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2512;  Simkins'  Fed- 
eral Equity  Suit,  3d  ed.,  p.  425.) 

An  affirmation  in  lieu  of  oath  may  be  used. 

Equity  Rule  78.  "Whenever  under  these  rules  an  oath  is 
or  may  be  required  to  be  taken,  the  party  may,  if  conscien- 
tiously scrupulous  of  taking  an  oath,  in  lieu  thereof,  make 
solemn  affirmation  to  the  truth  of  the  facts  stated  by  him." 
(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2529;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  p.  425.) 

See,  also,  §  359  above  as  to  administration  of  oaths. 


325  PABTIES.  Ch.  27,  §  710 


CHAPTER  27. 

PARTIES. 

SEO. 

710.  Real  Party  in  Interest;  Necessary  Parties;  Intervention — Rule  37. 

711.  Delect  of  Parties  may  Cause  Dismissal  on  Court's  Own  Motion. 

712.  Real  Party  in  Interest — Capacity  of  Plaintiff  to  Sue. 

713.  Persons  Having  an  Interest  may  Join  as  Plaintiffs. 

714.  Party  Refusing  to  Join  as  Plaintiff  may  be  Made  a  Defendant. 

715.  Class  Suits— Kule  38. 

716.  Common  Interest  a  Material  Issue. 

717.  Representatives  of  a  Class. 

718.  Where  Parties  have  a  Eepresentative  Others  may  not  Sue  Unless  Rep- 

resentative Kefuses  to  Act. 

719.  Absence  of  Persons  Who  Would  be  Proper  Parties — Rule  39. 

720.  Absence  of  Parties — Illustrations. 

721.  Nominal  Parties — Rule  40. 

722.  Heir  as  Party— Suit  to  Execute  Trusts  of  Will — Rule  41. 

723.  Joint  and  Several  Demands — Rule  42. 

724.  Saving    Rights    of    Absent    Parties    Where   Defendant    Makes   Tardy 

Objection — Rule  44. 

§ 710.    Real  Party  in  Interest;  Necessary  Parties;  Intervention. 

Equity  Rule  37.  "Every  action  shall  be  prosecuted  in  the 
name  of  the  real  party  in  interest,  but  an  executor,  adminis- 
trator, guardian,  trustee  of  an  express  trust,  a  party  with 
whom  or  in  whose  name  a  contract  has  been  made  for  the  ben- 
efit of  another,  or  a  party  expressly  authorized  by  statute,  may 
sue  in  his  own  name  without  joining  with  him  the  party  for 
whose  benefit  the  action  is  brought.  All  persons  having  an 
interest  in  the  subject  of  the  action  and  in  obtaining  the  relief 
demanded  may  join  as  plaintiffs,  and  any  person  may  be  made 
a  defendant  who  has  or  claims  an  interest  adverse  to  the 
plaintiff.  Any  person  may  at  any  time  be  made  a  party  if 
his  presence  is  necessary  or  proper  to  a  complete  determina- 
tion of  the  cause.  Persons  having  a  united  interest  must  be 
joined  on  the  same  side  as  plaintiffs  or  defendants,  but  when 
any  one  refuses  to  join,  he  may  for  such  reason  be  made  a 
defendant. 


§§  711-712,  Ch.  27     MANUAL  OP  FEDERAL  PROCEDURE.  326 

"Anyone  claiming  an  interest  in  the  litigation  may  at  any 
time  be,  permitted  to  assert  his  right  by  intervention,  but  the 
intervention  shall  be  in  subordination  to,  and  in  recognition 
of,  the  propriety  of  the  main  proceeding."  (3  U.  S.  Comp. 
Stats.  1916,  §  1536,  p.  2512;  Foster's  Federal  Practice,  5th  ed., 
p.  404,  §.110,  p.  415,  §113,  p.  821,  §258;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  pp.  225,  229,  252.) 

§  711.  Defect  of  Parties  may  Cause  Dismissal  on  Court's  Own 
Motion.  In  American  Ball  Bearing  Co.  v.  Adams  (N.  D.  Ohio), 
222  Fed.  976,  979,  it  was  contended  that  the  question  as  to  the 
capacity  of  the  plaintiff  to  maintain  the  suit  could  not  be  raised 
and  decided  by  the  court,  because  it  was  not  made  by  the  plead- 
ings in  the  case.  The  court  said:  "It  is  enough  to  say  that  this 
is  a  suit  in  equity  to  which  both  section  37  of  the  Judicial  Code 
(quoted  above  §215),  and  rule  37  (quoted  above  §710),  of  the 
new  equity  rules  of  1912  are  applicable,  and  that  under  the  au- 
thority of  these,  as  well  as  under  the  general  authority  of  a  court 
to  prevent  imposition,  I  have  no  doubt  that  it  is  within  the  power, 
and  that  it  is  the  duty  of  this  court  when  it  believes,  as  I  be- 
lieve in  this  case,  that  a  plaintiff  is  without  legal  capacity  to 
maintain  a  suit  before  it  to  proceed  no  further  therein,  but  to 
dismiss  the  case.  I  cannot  assent  to  the  conclusion  that  a  court 
is  so  bound  by  rules  of  practice  that  it  must  enter  a  judgment  in 
favor  of  or  against  a  corporate  name  which  it  believes  has  no 
right  in  court,  either  as  a  corporation  de  jure  or  de  facto,  simply 
because  the  parties  to  the  cause  may  not  have  made  the  validity 
of  the  corporate  powers  of  the  plaintiff  an  issue  by  their  plead- 
ings." 

§  712.  Real  Party  in  Interest — Capacity  of  Plaintiff  to  Sue. 
Rule  37,  quoted  above  §  710,  raises  no  question  of  legal  capacity 
to  sue  but  is  direct-ed  to  the  ground  of  federal  jurisdiction. 

In  Kardo  Co.  v.  Adams  (6th  Cir.),  231  Fed.  950,  958, 146  C.  C.  A. 
146,  the  court  said: 

"While  that  part  of  equity  rule  37  taking  effect  February 
1,  1913,  providing  that  'every  action  shall  be  prosecuted  in 


327  PARTIES.  Ch.  27,  §§  713-715 

the  name  of  the  real  party  in  interest,'  is  not  found  in  any 
previous  equity  rules  made  by  the  Supreme  Court  for  the 
guidance  of  courts  in  equity  cases,  yet  it  is  but  the  declaration 
of  a  rule  in  equity  in  the  courts  of  the  United  States,  which 
by  statute  of  Ohio  and  generally  in  the  states  which  have 
adopted  a  code  of  civil  procedure  prevails,  and  which,  in  cases 
at  law,  the  courts  of  the  United  States  follow.  It  is  clear, 
therefore,  that  when  the  nature  of  the  suit  is  such  as  to  show 
that  it  really  and  substantially  involves  a  controversy  within 
the  capacity  of  the  court  to  determine  and  grant  the  relief 
asked,  and  no  question  of  citizenship,  upon  which  jurisdiction 
is  based,  exists,  the  case  presents  no  peculiar  feature  imposing 
on  a  court  of  the  United  States  the  duty,  on  its  own  motion, 
without  pleadings,  of  inquiring  into  the  question  of  the 
capacity  of  the  plaintiff  to  sue." 

§  713.  Persons  Having  an  Interest  may  Join  as  Plaintiffs. 
The  interest  referred  to  in  Rule  37,  quoted  above  §  710,  is  an  in- 
terest in  law.  Therefore,  an  assignee  of  a  copyrighted  drama, 
where  moving-picture  rights  are  reserved  by  the  author  is  not  a 
proper  party  to  an  infringement  suit  against  producing  a  motion- 
picture  play.  (Tully  v.  Triangle  Film  Corp.,  229  Fed.  297.) 

§714.  Party  Refusing  to  Join  as  Plaintiff  may  be  Made  a 
Defendant.  Thus  in  a  suit  by  trustees  of  an  insolvent  to  recover 
assets,  where  one  of  the  trustees  refuses  to  join  as  a  complainant, 
he  may  be  made  a  defendant.  His  citizenship  in  such  a  case 
is  considered  as  of  a  plaintiff,  so  that  the  fact  of  his  being  joined 
as  defendant  with  a  citizen  of  the  same  state  does  not  deprive 
the  court  of  jurisdiction.  (Georgia  S.  &  F.  Ry.  v.  Einstein  (5th 
Cir.),  218  Fed.  55,  133  C.  C.  A.  657.) 

§  715.     Class  Suits — Rule  38. 

Equity  Rule  38.  "When  the  question  is  one  of  common  or 
general  interest  to  many  persons  constituting  a  class  so  numer- 
ous as  to  make  it  impracticable  to  bring  them  all  before  the 
court,  one  or  more  may  sue  or  defend  for  the  whole."  (3 
U.  S.  Comp.  Stats.  191 G,  §1536,  p.  2513;  Foster's  Federal 
Practice,  5th  ed..  §  114,  p.  423;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  pp.  228,  237,  238,  239.) 


§§  716-717,  Ch.  27     MANUAL  OP  FEDERAL  PROCEDURE.  328 

§716.  Common  Interest  a  Material  Issue.  Under  rule  38, 
quoted  above  §  715,  when  the  allegation  of  a  general  or  common 
interest  to  many  persons  is  denied,  the  duty  devolves  on  the  court 
to  determine  whether  the  common  or  general  interest  exists  be- 
fore decreeing  against  those  who  are  alleged  to  be  in  court  by 
representation. 

A  suit  against  the  members  of  a  local  labor  union  would  not 
bring  in  the  general  officers  of  the  union  unless  participants  with 
those  served.  (Hill  v.  Eagle  Glass  &  Mfg.  Co.  (4th  Cir.),  219 
Fed.  719,  135  C.  C.  A.  417.  See,  also,  I/ittle  v.  Tanner,  208  Fed. 
605;  In  re  Englehard  &  Sons  Co.,  231  U.  S.  646,  58  L.  Ed.  416,  34 
Sup.  Ct.  258.)  A  suit  by  an  alien  to  restrain  the  enforcement 
of  a  state  law  requiring  employers  to  employ  eighty  per  cent 
qualified  voters  or  native-born  citizens  (Arizona,  Nov.  3,  1914), 
was  not  an  action  in  which  plaintiff  could  sue  on  behalf  of  all 
others  similarly  situated.  (Raich  v.  Truax  (Ariz.),  219  Fed.  273, 
and  cases  cited.) 

§717.  Representatives  of  a  Class.  "Where  an  order  of  the 
Interstate  Commerce  Commission  authorized,  and  a  tariff  filed 
thereunder  provided,  higher  rates  to  four  certain  cities  than  to 
certain  other  cities,  one  of  such  cities,  representing  the  interest 
of  its  citizens,  and  traffic  associations  formed  for  the  purpose  of 
representing  jobbers  and  merchants  in  the  three  other  cities, 
could  maintain  a  suit  to  enjoin  the  enforcement  of  such  order 
and  tariff,  as  they  were  within  the  rule  that  bills  may  be  filed 
in  the  name  of  unincorporated  associations  and  parties  in  behalf 
of  others  similarly  situated,  and  moreover  the  equity  rules  seem 
to  contemplate  such  a  suit  for  the  common  benefit  of  all,  where 
the  parties  are  numerous  and  have  a  common  or  general  interest. 
(Merchants'  &  Manuf.  Traffic  Assn.  v.  United  States  (N.  D. 
Cal.),  231  Fed.  292.  A  class  suit.  Helm  v.  Zarecor  (M.  D. 
Tenn.),  213  Fed.  648.) 

A  corporation  representing  its  stockholders  for  whom  it  has 
made  a  contract  is  a  proper  party  to  sue.  (Magruder  v.  Belle 


329  PARTIES.  Ch.  27,  §§  718-719 

Fourdie  Valley  Water  Users  Assn.  (8th  Cir.),  219  Fed.  72,  133 
C.  C.  A.  524.) 

§  718.  Where  Parties  have  a  Representative  Others  may  not 
Sue  Unless  Representative  Refuses  to  Act.  Holders  of  mortgage 
bonds  of  a  railroad  company  cannot  maintain  a  suit  to  enjoin 
the  enforcement  of  a  state  statute  fixing  rates  unless  it  is  shown 
that  the  mortgage  trustee,  representing  all  the  bondholders,  has 
refused  to  bring  the  suit. 

The  case  is  not  within  federal  equity  rule  38,  for  here  the 
mortgage  trustee  is  normally  the  official  representative  of  the 
bondholders.  The  trustees  under  the  consolidated  mortgage 
being  properly  before  the  court,  it  is  immaterial  whether  the 
individual  holders  of  bonds  secured  by  that  mortgage  are  prop- 
erly joined  with  the  trustee  as  parties  plaintiff.  (Winthrop  v. 
Fellows  (Mich.),  230  Fed.  702,  705.) 

§  719.    Absence  of  Persons  Who  Would  be  Proper  Parties. 

Equity  Rule  39.  "In  all  cases  where  it  shall  appear  to  the 
court  that  persons  who  might  otherwise  be  deemed  proper 
parties  to  the  suit,  cannot  be  made  parties  by  reason  of  their 
being  out  of  the  jurisdiction  of  the  court,  or  incapable  other- 
wise of  being  made  parties,  or  because  their  joinder  would  oust 
the  jurisdiction  of  the  court  as  to  the  parties  before  the  court, 
the  court  may,  in  its  discretion,  proceed  in  the  cause  without 
making  such  persons  parties;  and  in  such  cases  the  decree 
shall  be  without  prejudice  to  the  rights  of  the  absent  parties." 
(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2513;  Foster's  Federal 
Practice,  5th  ed.,  §  117,  p.  431;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  pp.  225,  227,  231.) 

It  is  the  usual  rule  in  the  federal  courts  that,  if  a  case  may 
be  finally  decided  between  the  parties  litigant  without  bringing 
others  before  the  court  who  would,  generally  speaking,  be  neces- 
sary parties,  such  parties  may  be  dispensed  with  if  they  are 
citizens  of  another  state.  But,  if  parties  not  before  the  court 
have  rights  so  closely  related  to  the  issues  between  the  parties 
in  court  that  a  final  decision  cannot  be  made  between  them  with- 


§  720,  Ch.  27          MANUAL  OP  FEDERAL  PROCEDURE.  330 

out  affecting  the  rights  of  those  not  before  the  court,  the  court 
may  not  dispense  with  such  persons.  (Ex  parte  Equitable  Trust 
Co.,  231  Fed.  571,  145  C.  C.  A.  457.) 

§  720.  Absence  of  Parties — Illustrations.  Under  §  50,  Jud. 
Code,  and  Rule  39  (quoted  §  719°,  above)  a  federal  court  has 
jurisdiction  of  a  suit  by  a  packer  to  require  inspectors  to  inspect 
and  pass  a  product  where  the  chief  inspector  in  charge  at  the 
place  of  suit  is  before  the  court,  although  department  heads, 
who  are  made  parties,  cannot  be  served.  (St.  Louis  Independent 
Packing  Co.  v.  Houston  (8th  Cir.),  215  Fed.  553,  132  C.  C.  A.  65.) 

In  a  recent  case  (Lowenthal  v.  Georgia  Coast  &  P.  B.  Co.,  233 
Fed.  1010,  at  page  1015),  the  court  holding  that  a  trustee  was 
not  an  indispensable  party  said: 

"The  contention  that  the  bill  must  be  dismissed  because  the 
trustee  is  not  made  a  party  defendant  is  equally  unfounded. 
The  trustee  is  a  corporation  and  a  citizen  of  New  York.  It  is 
not  found  in  this  district,  and  does  not  voluntarily  appear. 
But  the  railway  property  is  here,  and  to  this  the  lien  and 
mortgage  securing  plaintiff's  bonds  inheres.  Here,  also,  is 
the  defendant  corporation  a  corporation  of  this  state. 

"In  such  cases,  the  court  may  entertain  jurisdiction  and 
proceed  to  the  trial  and  adjudication  of  the  suit  between  the 
parties  who  are  properly  before  it,  but  the  judgment  and  de- 
cree rendered  therein  shall  not  conclude  or  prejudice  other 
parties  not  legally  served  with  process,  nor  voluntarily  appear- 
ing to  answer.  A  nonjoinder  of  parties  who  are  not  in- 
habitants of  nor  found  in  the  district  as  aforesaid  shall  not 
constitute  matter  of  abatement  or  objection  to  the  suit.  Jud. 
Code,  §  50. 

"The  rule  in  equity  No.  39  [quoted  §  719,  above] ,  also  nega- 
tives the  contention.  It  provides  that  in  all  cases  where  it 
shall  appear  to  the  court  that  persons  that  might  otherwise 
be  deemed  proper  parties  to  the  suit  cannot  be  made  parties 
by  reason  of  their  being  without  the  jurisdiction  of  the  court, 
or  incapable  otherwise  of  their  being  made  parties,  or  because 
this  joinder  would  oust  the  jurisdiction  of  the  court  as  to 
parties  before  it.  The  court  may  in  its  discretion  proceed 
in  the  cause,  without  making  such  persons  parties,  and  in  such 


331  PARTIES.  Ch.  27,  §  721 

cases  the  decree  shall  be  without  prejudice  to  the  rights  of 
the  absent  parties.  Thus  Congress  has  taken  action  to  remove 
the  obstacle  in  the  way  of  the  plaintiff  and  the  court  which 
this  motion  to  dismiss  seeks  to  introduce. 

"Obviously,  to  join  the  trustee  as  a  party,  as  a  citizen  of 
another  state,  at  this  time,  when  it  cannot  be  served,  would 
be  to  hazard  the  jurisdiction  of  the  court,  to  grant  the  pre- 
liminary relief  now  sought.  While  the  trustee  may  be  a  proper 
party,  and  may  be  heard  as  to  any  right  it  may  set  up,  it  is 
clearly  not  an  indispensable  party  to  this  application." 

Where  a  contract  was  made  by  the  corporation  on  behalf  of 
subsidiary  corporations  of  which  it  owns  all  the  stock  and  takes 
all  the  profits  earned,  such  subsidiary  corporations  are  not  neces- 
sary parties  in  a  stockholders'  suit  to  set  the  contract  aside. 
(Ross  v.  Quinnesec  Iron  Mining  Co.  (6th  Cir.),  227  Fed;  337, 
142  C.  C.  A.  33.) 

In  suit  (Grigsby  v.  Miller  (Or.),  231  Fed.  521)  by  a  deceased 
wife's  administrator  to  set  aside  a  deed  given  by  her  and  her 
husband,  the  husband,  though  a  proper  and  necessary,  was  held 
not  an  "indispensable,  party,"  one  so  necessary  that  a  decree 
without  his  presence  would  prejudice  his  rights  and  leave  the 
case  contrary  to  equity  and  good  conscience,  a  party  whose  in-. 
terest  in  the  subject  matter  of  the  suit  and  the  relief  sought 
is  so  bound  up  with  that  of  other  parties  that  his  legal  presence 
as  a  party  is  an  absolute  necessity  to  the  court's  right  to  pro- 
ceed, since,  though  the  husband  has  an  inchoate  interest  in  the 
cause,  in  that,  if  plaintiff  succeeded,  he  would  be  benefited  by 
the  litigation  to  the  extent  of  having  his  title  to  the  property 
potentially  established,  subject  to  the  right  of  the  adminis- 
trator to  subject  it  to  the  payment  of  the  wife's  debts,  plaintiff 
as  administrator  could  proceed  without  such  husband  as  a  party 
and  obtain  all  the  relief  to  which  he  was  entitled,  without  affect- 
ing the  husband's  interests  or  rights. 

§  721.     Nominal  Parties. 

Equity  Rule  40.  "Where  no  account,  payment,  convey- 
ance, or  other  direct  relief  is  sought  against  a  party  to  a  suit, 
not  being  an  infant,  the  party,  upon  service  of  the  subpoena 


§§  722-724,  Ch.  27    MANUAL  OF  FEDERAL  PROCEDURE.  332 

upon  him,  need  not  appear  and  answer  the  bill  unless  the 
plaintiff  specially  requires  him  to  do  so  by  the  prayer;  but 
he  may  appear  and  answer  at  his  option;  and  if  he  does  not 
appear  and  answer  he  shall  be  bound  by  all  the  proceedings 
in  the  cause.  If  the  plaintiff  shall  require  him  to  appear 
and  answer  he  shall  be  entitled  to  the  costs  of  all  the  pro- 
ceedings against  him  unless  the  court  shall  otherwise  direct." 
(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2514;  Foster's  Federal 
Practice,  5th  ed.,  §  154,  p.  561,  §  409,  p.  1284;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  p.  239.) 

§.722.    Heir  as  Party— Suit  to  Execute  Trusts  of  Will. 

Equity  Rule  41.  "In  suits  to  execute  the  trusts  of  a  will 
it  shall  not  be  necessary  to  make  the  heir  at  law  a  party;  but 
the  plaintiff  shall  be  at  liberty  to  make  the  heir  at  law  a  party 
if  he  desires  to  have  the  will  established  against  him."  (3 
U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2514;  Foster's  Federal 
Practice,  5th  ed.,  §  119,  p.  435;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  pp.  229,  254.) 

§  723.    Joint  and  Several  Demands. 

Equity  Rule  42.  "In  all  cases  in  which  the  plaintiff  has  a 
joint  and  several  demand  against  several  persons,  either  as 
principals  or  sureties,  it  shall  not  be  necessary  to  bring  before 
the  court  as  parties  to  a  suit  concerning  such  demand  all  the 
persons  liable  thereto;  but  the  plaintiff  may  proceed  against 
one  or  more  of  the  persons  severally  liable."  (3  U.  S.  Comp. 
Stats.  1916,  §1536,  p.  2515;  Foster's  Federal  Practice,  5th 
ed.,  §  112,  p.  414;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  229,  240.) 

§  724.    Saving  Rights  of    Absent  Parties  Where    Defendant 
Makes  Tardy  Objection. 

Equity  Rule  44.  "If  a  defendant  shall,  at  the  hearing  of 
a  cause,  object  that  a  suit  is  defective  for  want  of  parties,  not 
having  by  motion  or  answer  taken  the  objection  and  therein 
specified  by  name  or  description  the  parties  to  whom  the  objec- 
tion applies,  the  court  shall  be  at  liberty  to  make  a  decree 
saving  the  rights  of  the  absent  parties."  (3  U.  S.  Comp. 
State.  1916,  §  1536,  p.  2515;  Foster's  Federal  Practice,  5th  ed., 
§129,  p.  456;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  263, 
427.) 


333  INTERVENTION.  Ch.  28,  §§  730-731 


CHAPTER  28. 

INTERVENTION. 
SEO. 

730.  Intervention— Last  Part  Rule  37. 

731.  Intervention  Does  not  Lie  for  Unliquidated  Demands. 

732.  Citizenship  of  Intervener  and  Amount  of  Claim  not  Material  to  Juris- 

diction. 

733.  Procedure. 

§  730.    Intervention— Last  Part  Rule  37. 

Last  Part  Equity  Rule  37.  "...  Anyone  claiming  an  in- 
terest in  the  litigation  may  at  any  time  be  permitted  to  assert 
his  right  by  intervention,  but  the  intervention  shall  be  in 
subordination  to,  and  in  recognition  of,  the  propriety  of  the 
main  proceeding."  (§710  above;  Atlas  Underwear  Co.  v. 
Cooper  Underwear  Co.,  210  Fed.  348 ;  Hutchinson  v.  Phila- 
delphia &  G.  S.  S.  Co.,  216  Fed.  795.) 

§  731.  Intervention  Does  not  Lie  for  Unliquidated  Demands. 
In  Glass  v.  Woodman  (8th  Cir.),  223  Fed.  621,  139  C.  C.  A.  167, 
the  court  held  that  the  right  of  intervention  does  not  necessarily 
follow  from  the  absence  of  other  remedy;  but  an  intervener 
should  have  some  interest  in  or  claim  to  the  demand  in  suit,  or 
some  connection  with,  interest  in,  or  lien  upon  the  subject  mat- 
ter of  the  litigation.  The  court  also  held  that  one  having  an 
unliquidated  demand  against  the  complainants  in  a  foreclosure 
suit  in  a  federal  court,  who  are  nonresident  aliens,  is  not,  be- 
cause of  such  fact,  entitled  'to  intervene  in  the  suit  for  the  pur- 
pose of  litigating  his  claim  and  enforcing  the  same  against  the 
interest  of  complainants  therein. 

The  court  in  the  case  last  above  cited  called  attention  to  the 
two  kinds  of  cases  of  intervention,  stating  page  623  as  follows: 

"Some  cases  are  so  circumstanced  that  intervention  is  an 
absolute  right;  others  rest  in  the  discretion  of  the  trial  court, 
whose  action  will  not  be  reviewed  on  appeal.  (Credits  Com- 
mutation Co.  v.  United  States,  91  Fed.  570,  34  C.  C.  A.  12; 
Id.,  177  U.  S.  311,  44  L.  Ed.  782,  20  Sup.  Ct.  636.)" 


§§  732-733,  Ch.  28    MANUAL  OF  FEDERAL  PROCEDURE.  334 

§  732.  Citizenship  of  Intervener  and  Amount  of  Claim  not 
Material  to  Jurisdiction.  Intervention  being  in  its  nature 
auxiliary,  the  citizenship  of  the  intervener  is  not  material  where 
the  federal  court  has  jurisdiction  of  the  original  suit  and  has 
in  its  possession  the  property  or  fund  in  which  the  intervener 
claims  an  interest.  (Compton  v.  Jesup,  68  Fed.  279,  15  C.  C.  A. 
397.) 

Citizenship  is  material  when  the  federal  court  does  not  have 
possession  of  the  property  or  fund  in  which  the  intervener  claims 
an  interest.  (United  Electric  Securities  Co.  v.  Louisiana  Elect. 
Light  Co.,  68  Fed.  673.) 

Intervention  will  lie  regardless  of  citizenship  where  the  inter- 
vener claims  an  interest  in  attached  property.  (Gumbel  v.  Pit- 
kin,  124  U.  S.  132,  31  L.  Ed.  374,  8  Sup.  Ct.  379.) 

The  amount  or  value  of  the  intervener 's  claim  is  also  not 
material  where  the  federal  court  has  jurisdiction  of  the  main 
suit.  (People's  Saving  Inst.  v.  Miles,  76  Fed.  252,  22  C.  C.  A. 
152.) 

§  733.  Procedure.  The  procedure  consists  of  filing  an  appli- 
cation and  obtaining  an  order. 

As  to  contents  of  the  petition,  see  Empire  Distilling  Co.  v. 
McNulta,  77  Fed.  701,  23  C.  C.  A.  415,  46  U.  S.  App.  578. 

As  to  amendments,  see  Anthony  v.  Campbell,  112  Fed.  212,  50 
C.  C.  A.  195. 

The  better  practice  is  to  give  notice.  (Central  Trust  Co.  v. 
Madden,  70  Fed.  453,  17  C.  C.  A.  236.) 

The  petition  may  be  contested  by  any  parties  to  the  suit. 
(Powell  v.  Leicester  Mills,  92  Fed.  115.) 

An  order  is  made  allowing  the  application,  unless  waived  by 
filing  an  answer  to  the  intervention.  (Illinois  Steel  Co.  v.  Ram- 
sey, 176  Fed.  853,  864,  100  C.  C.  A.  323.) 

The  order  being  granted,  the  applicant  is  a  party  to  the  suit 
in  all  subsequent  proceedings  giving  the  right  of  appeal.  (Mer- 
cantile Trust  &  D.  Co.  v.  Roanoke  &  S.  R.  Co.,  109  Fed.  3,  8.) 


335  STOCKHOLDERS'  BILL.         Ch.  29,  §§  740-741 


CHAPTER  29. 

STOCKHOLDERS'  BILL. 

SEO. 

740.  The  Equity  Rule— No.  27. 

741.  Stockholders'  Bill — Old  and  New  Rules  Compared. 

742.  Same — Purposes  of  the  Rule. 

743.  Allegation  as  to  "Reason  for  not  Making  Such  Effort." 

744.  Where  Statutory  Receiver  has  Been  Appointed. 

§  740.     The  Equity  Rule— No.  27. 

Equity  Rule  27.  "Every  bill  brought  by  one  or  more 
stockholders  in  a  corporation  against  the  corporation  and  other 
parties,  founded  on  rights  which  may  properly  be  asserted 
by  the  corporation,  must  be  verified  by  oath,  and  must  contain 
an  allegation  that  the  plaintiff  was  a  shareholder  at  the  time 
of  the  transaction  of  which  he  complains,  or  that  his  share 
had  devolved  on  him  since  by  operation  of  law,  and  that  the 
suit  is  not  a  collusive  one  to  confer  on  a  court  of  the  United 
States  jurisdiction  of  a  case  of  which  it  would  not  otherwise 
have  cognizance.  It  must  also  set  forth  with  particularity  the 
efforts  of  the  plaintiff  to  secure  such  action  as  he  desires  on 
the  part  of  the  managing  directors  or  trustees,  and  if  neces- 
sary, of  the  shareholders,  and  the  causes  of  his  failure  to  obtain 
such  action,  or  the  reason  for  not  making  such  effort."  (3 
U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2505;  Foster's  Federal 
Practice,  5th  ed.,  pp.  515,  521,  562,  849;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  pp.  240,  243,  287,  425.) 

This  "verification  by  oath"  is  a  requirement  peculiar  to  this 
class  of  bills  only,  unless  special  relief  pending  suit  be  desired,  as 
discussed  under  §  698,  above. 

§741.  Stockholders'  Bill  —  Old  and  New  Rules  Compared. 
The  rule  is  a  re-embodiment  of  old  Rule  94,  promulgated  in  1882, 
the  language  being  identical,  with  the  exception  of  the  last 
phrase,  "or  the  reason  for  not  making  such  effort,"  which  is 
new. 


§  741,  Ch.  29  MANUAL  OP  FEDERAL  PROCEDURE.  336 

An  examination  of  the  decisions  construing  former  Rule  94 
makes  clear  the  reasons  for  the  addition  of  the  phrase,  it  having 
been  held  that  if  the  circumstances  are  such  that  it  is  apparent 
that  efforts  on  the  part  of  the  plaintiff  to  secure  such  action 
as  he  desires  by  the  directors  or  trustees  or  by  the  other  share- 
holders of  the  corporation  would  be  useless,  then  such  efforts 
are  unnecessary.  But  the  circumstances  manifesting  the  use- 
lessness  of  such  efforts  must  be  clearly  alleged.  (Doctor  v.  Har- 
rington, 196  U.  S.  579,  49  L.  Ed.  606,  25  Sup.  Ct.  355 ;  Delaware 
&  EL  Co.  v.  Albany  &  S.  B.  Co.,  213  U.  S.  435,  53  L.  Ed.  862,  29 
Sup.  Ct.  540.) 

Old  Rule  94  expresses  primarily  the  conditions  which  must 
precede  the  exercise  of  the  right  of  a  stockholder  to  protect  the 
corporation,  but  emergencies  may  arise  in  which  the  antagonism 
between  the  directory  and  the  corporate  interests  may  be  unmis- 
takable and  the  requirements  of  the  rule  may  be  dispensed  with, 
or,  it  is  more  accurate  to  say,  do  not  apply.  (Delaware  &  H. 
Co.  v.  Albany  &  S.  R.  Co.,  213  U.  S.  435,  53  L.  Ed.  862,  29  Sup. 
Ct.  540;  Hyams  v.  Calumet  &  Hecla  Mining  Co.  (6th  Cir.),  221 
Fed.  529,  137  C.  C.  A.  239;  Granite  Brick  Co.  v.  Titus  (4th  Cir.), 
226  Fed.  557,  141  C.  C.  A.  313;  Dana  v.  Morgan  (S.  D.  N.  Y.)> 
219  Fed.  313.) 

Thus  an  allegation  that  the  defendants  who  made  the  con- 
tract and  benefit  by  it  are  in  absolute  control  of  the  affairs  of 
the.  corporation  is  sufficient  to  excuse  efforts  to  secure  action  by 
the  officers.  (Ross  v.  Quinnesec  Iron  Mining  Co.  (6th  Cir.),  227 
Fed.  337,  142  C.  C.  A.  33.) 

So  where  a  stockholder  sues  on  behalf  of  the  corporation  to 
set  aside  an  alleged  fraudulent  contract  made  by  it,  formal  re- 
quest of  the  corporation  to  sue  may  be  excused  where  the  circum- 
stances show  that  it  would  have  been  futile.  (Dana  v.  Morgan 
(S.  D.  N.  Y.),  219  Fed.  313.) 

Where  the  allegations  in  a  petition  for  leave  to  intervene  in 
bankruptcy  proceedings  of  stockholders  of  the  defendant  cor- 
poration, and  the  proposed  answer  made  a  part  thereof  showed 
that  an  adjudication  in  bankruptcy  was  not  being  opposed  by 


337  STOCKHOLDERS'  BILL.  Ch.  29,  §  742 

the  directors,  so  that  they  might  acquire  the  property  at  less 
than  its  value,  Equity  Rule  27,  requiring  that  the  stockholder  of 
a  corporation,  seeking  to  bring  a  stockholder's  action,  must  have 
endeavored  to  secure  such  action  as  he  desires  on  the  part  of 
the  directors,  will  be  dispensed  with,  as  is  the  case  where  the 
pleadings  show  that  the  interests  of  the  directors  are  antag- 
onistic to  those  of  the  corporation.  (Ogden  v.  Gilt  Edge  Consol. 
Mines  Co.  (8th  Cir.),  225  Fed.  723,  140  C.  C.  A.  597.) 

By  the  addition  of  the  alternative  phrases,  Eule  27  is  made 
broad  enough  to  cover  all  cases  in  which  a  stockholder  may  bring 
a  suit  "founded  on  rights  which  may  properly  be  asserted  by  the 
corporation,"  and  conforms  to  the  law  as  declared  by  the  cases 
above  cited,  recognizing  that  there  may  be  reasons  which  excuse 
the  efforts  of  the  plaintiff  to  secure  action  by  the  directors  or 
stockholders. 

A  full  and  unequivocal  compliance  with  the  requirements  of 
the  rule  is  necessary.  (Ziegler  v.  Lake  Street  El.  R.  Co.,  76  Fed. 
662,  22  C.  C.  A.  465.)  The  absence  of  either  of  the  required 
allegations  constitutes  ground  for  a  motion  to  dismiss  the  bill. 
(Illinois  Central  R.  R.  Co.  v.  Adams,  180  U.  S.  28,  45  L.  Ed.  410, 
21  Sup.  Ct.  251;  Equity  Rule  29;  Veuner  v.  Great  Northern  Ry. 
Co.,  153  Fed.  408.) 

§  742.  Same — Purposes  of  the  Rule.  The  purposes  of  the  rule 
are  obvious,  to  wit: 

1.  It  is  intended  to  preclude  persons  from  buying  stock  in 
corporation  for  the  purpose  of  extortion  by  litigation;  hence  the 
requirement  of    the  allegation  that  the  plaintiff    was  a  share- 
holder at  the  time  of  the  transaction  of  which  he  complains,  or 
that  his  share  had  devolved  on  him  since  by  operation  of  law. 
(Robinson  v.  West  Virginia  Loan  Co.,  90  Fed.  770,  772;  Dimpfel 
v.  Ohio  &  M.  Ry.  Co.,  110  U.  S.  209,  28  L.  Ed.  121,  3  Sup.  Ct.  573.) 

2.  The  purpose  of  the  clause  requiring  it  to  be  alleged  "that 
the  suit  is  not  a  collusive  one,  to  confer  on  a  court  of  the  United 
States  jurisdiction  of  a  cause  of  which  it  would  not  otherwise 

Manual — 22 


§  743,  Ch.  29          MANUAL  OF  FEDERAL  PROCEDURE.  338 

have  cognizance,"  is  "to  secure  the  federal  court  from  imposition 
upon  the  jurisdiction."  (Delaware  &.H.  Co.  v.  Albany  &  S.  R. 
Co.,  213  U.  S.  435,  53  L.  Ed.  862,  29  Sup.  Ct.  540 ;  Young  v.  Alham- 
bra  Min.  Co.,  71  Fed.  810.) 

The  rule  was  intended  only  to  exclude  cases  brought  by  a 
stockholder  collusively  in  order  to  give  apparent  jurisdiction  to 
a  court  which  would  not  have  it  if  the  suit  were  by  the  corpora- 
tion. (Delaware  &  H.  R.  Co.  v.  Albany  &  S.  R.  Co.,  213  U.  S. 
435,  53  L.  Ed.  862,  29  Sup.  Ct.  540.) 

3.  The  remainder  of  the  rule,  requiring  that  the  bill  ' '  set  forth 
with  particularity  the  efforts  of  the  plaintiff  to  secure  such 
action  as  he  desires,  on  the  part  of  the  managing  directors  or 
trustees,  and  if  necessary,  of  the  shareholders,  and  the  causes 
of  his  failure  to  obtain  such  action  or  the  reason  for  not  making 
such  effort,"  recognizes  the  right  of  the  corporate  directory  to 
corporate  control,  making  the  corporation  paramount  even  when 
its  rights  are  to  be  protected  or  sought  through  litigation. 
(Kelly  v.  Dolan  (E.  D.  Pa.),  218  Fed.  966.) 

§  743.  Allegation  as  to  "Reason  for  not  Making  Such  Effort." 
The  court,  in  Russell  v.  Shippen  Bros.  Lumber  Co.  (N.  D.  Ga.), 
224  Fed.  254,  256,  says : 

"In  the  original  bill  there  was  a  paragraph  in  the  following 
language : 

"  'Your  orators  are  further  informed,  and  on  information 
and  belief  allege,  that  the  chief  executive  officer  of  the  said 
lumber  company  is  among  said  claimants,  and  avers  an  indebt- 
edness against  said  company  in  a  large  amount,  which  indebt- 
edness is  not  admitted  by  your  orators ;  and  your  orators  aver 
that  the  validity  of  said  indebtedness  so  claimed  should  be 
carefully  investigated  before  the  same  is  paid  by  said  lumber 
company,  and  that  there  are  equitable  rights  in  favor  of  said 
lumber  company  against  said  chief  executive  which  should  be 
asserted  in  favor  of  said'  company  by  one  whose  interest  does 
not  conflict  with  his  duties.' 

"This  is  clearly  defective  in  pleading  what  it  was  evidently 
intended  for  in  compliance  with  new  rule  No.  27,  quoted. 


339  STOCKHOLDERS'  BILL.  Ch.  29,  §  744 

"This  last  language,  'or  the  reasons  for  not  making  such 
effort,'  was  added  to  old  equity  rule  94,  and  is  now  a  part  of 
the  same  rule,  known  in  the  new  rules  as  No.  27,  as  stated. 

"The  supplemental  bill,  after  stating  that  William  H. 
Shippen  sets  up  claim  against  the  Shippcn  Bros.  Lumber  Com- 
pany for  over  $50,000,  proceeds  in  this  language : 

"  'Your  orators  further  aver  that  it  would  be  useless  to 
make  demand  upon  said  William  H.  Shippen  to  file  suit  against 
himself,  and  that  your  orators  have  made  demand  upon  the 
Shippen  Bros.  Lumber  Company,  one  of  the  defendants  herein, 
and  upon  its  officers  and  directors,  that  defendant  institute 
suit  against  the  said  William  H.  Shippen  and  Frank  E.  Ship- 
pen  for  the  purpose  of  enjoining  and  restraining  them  and 
their  agents  from  acting  as  officers  and  directors  of  the  said 
lumber  company,  and  for  the  purpose  of  restraining  them  from 
diverting  the  assets  of  the  said  company,  and  restraining  them 
from  asserting  any  rights  and  liabilities  which  they  or  either 
of  them  claim  against  said  Shippen  Bros.  Lumber  Company 
on  any  account  whatsoever,  and  especially  upon  a  certain 
alleged  note  of  said  Shippen  Bros.  Lumber  Company  claimed 
to  be  held  and  owned  by  the  said  William  H.  Shippen,  and 
that  for  reasons  unknown  to  your  orators  this  demand  has 
been  refused.  This  suit  is  not  filed  for  the  purpose  of  col- 
lusively  giving  jurisdiction  to  this  honorable  court  of  a  cause 
of  which  it  has  not  jurisdiction.' 

' '  This  allegation  seems  to  be  sufficient,  under  rule  27.  ... 

"Considered  as  a  stockholders'  proceeding  against  the  Ship- 
pen  Bros.  Lumber  Company  originally,  as  I  have  stated,  I 
think  what  was  alleged  in  the  original  bill  in  compliance  with 
equity  rule  27,  though  defective,  was  cured  by  this  supple- 
mental bill  and  by  the  allegations  therein  made.  .  .  . 

' '  The  motion  to  dismiss  will  be  overruled  and  denied. ' ' 

§  744.  Where  Statutory  Receiver  has  Been  Appointed.  Where 
a  corporation  is  stripped  of  its  assets  by  act  of  its  directors,  the 
right  of  action  is  not  only  primarily,  but  until  it  has  passed  to 
others  is  always,  in  the  corporation,  and  the  recovery  is  for  its 
benefit;  it  being  necessarily  a  party. 

And  where  a  corporation  is  injured  by  the  acts  of  its  directors, 
it  in  general  may  sue  or  withhold  the  right  to  sue,  and  the  action, 
when  brought,  must  be  brought  by  it  and  in  its  name. 


§  744,  Ch.  29          MANUAL  OF  FEDERAL  PROCEDURE.  340 

But  where  a  corporation  is  injured  by  being  deprived  of  its 
assets  by  directors,  and  on  demand  of  a  stockholder  fraudulently 
refused  to  sue,  the  stockholder  may  maintain  a  bill  for  its  benefit. 

Where  a  statutory  receiver  has  been  appointed  for  a  corpora- 
tion, neither  the  corporation  nor  a  stockholder  can  maintain  an 
action  for  alleged  loss  of  the  corporation's  assets  without  the 
sanction  of  the  court  appointing  the  receiver,  but  with  such 
sanction  a  suit  for  the  corporation's  benefit  may  be  brought  in 
a  foreign  jurisdiction  in  which  defendants  can  be  served. 

Where  a  statutory  receiver  has  been  appointed  for  a  corpora- 
tion, a  stockholder,  with  the  consent  of  the  court  appointing  the 
receiver,  may  sue  in  equity,  for  the  benefit  of  the  corporation 
and  its  receiver,  to  redress,  in  a  foreign  jurisdiction,  an  injury 
to  the  corporation.  (Kelly  v.  Dolan  (E.  D.  Pa.),  218  Fed.  966.") 


341  JOINDER  OF  CAUSES  OF  ACTION.      Ch.  30,  §§  700-751 


CHAPTER  30. 

JOINDER  OF  CAUSES  OF  ACTION. 
SEO. 

750.  The  Equity  Bule— No.  26. 

751.  Eule  Available  to  Both  Parties  Alike. 

752.  Examples  of  Joinder. 

753.  Causes  of  Action  must  be  Within  Court's  Jurisdiction  to  be  Joined. 

§  750.     The  Equity  Rule— No.  26. 

Equity  Rule  26.  "The  plaintiff  may  join  in  one  bill  as 
many  causes  of  action,  cognizable  in  equity,  as  he  may  have 
against  the  defendant.  But  when  there  is  more  than  one 
plaintiff,  the  causes  of  action  joined  must  be  joint,  and  if 
there  be  more  than  one  defendant  the  liability  must  be  one 
asserted  against  all  of  the  material  defendants,  or  sufficient 
grounds  must  appear  for  uniting  the  causes  of  action  in  order 
to  promote  the  convenient  administration  of  justice.  If  it 
appear  that  any  such  causes  of  action  cannot  be  conveniently 
disposed  of  together,  the  court  may  order  separate  trials." 
(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2505.) 

This  is  a  new  rule. 

§751.  Rule  Available  to  Both  Parties  Alike.  Rule  26  (also 
a  new  rule)  authorizes  the  plaintiff  to  "join  in  one  bill  as  many 
causes  of  action  cognizable  in  equity  as  he  may  have  against 
the  defendant,"  and  a  proper  construction  of  Rule  30  gives  the 
defendant  the  same  option ;  thus  both  parties  are,  in  the  matter  of 
joining  causes  of  action,  placed  on  an  equal  footing.  In  the  case 
of  the  plaintiff  so  joining,  the  court,  by  express  authority  con- 
tained in  the  concluding  sentence  of  Rule  26,  is  given  discretion 
to  order  separate  trials  if  it  appears  that  such  "causes  cannot 
be  conveniently  disposed  of  together."  In  case  the  joinder  is 
the  result  of  the  defendant's  action,  the  court  has  a  like  dis- 
cretion. Rule  30  declares  that  such  counterclaim  "shall  have 
the  same  effect  as  a  cross-suit,"  and  by  analogy,  if  not  by  neces- 


§§  752-753,  Ch.  30    MANUAL  OF  FEDERAL  PROCEDURE.  342 

sary  implication,  the  defendant  in  such  cross-suit  is  to  be  treated 
as  a  plaintiff,  and  the  joinder  of  different  causes  of  action  by 
him  in  one  suit  is  subject  to  the  court's  power  of  ordering  sepa- 
rate trials  if  they  "cannot  be  conveniently  disposed  of  together." 
(Electric  Boat  Co.  v.  Lake  Torpedo  Boat  Co.  (D.  N.  J.),  215  Fed. 
377,  at  p.  381.) 

§  752.  Examples  of  Joinder.  Where  diverse  citizenship  exists 
between  the  parties  and  the  requisite  amount  is  involved  to  give 
a  federal  court  jurisdiction,  a  cause  of  action  for  infringement 
of  a  trademark  and  one  for  unfair  competition  may  be  joined  in 
one  suit.  (Samson  Cordage  Works  v.  Puritan  Cordage  Mills 
(6th  Cir.),  211  Fed.  603,  L.  R.  A.  1915F,  1107,  128  C.  C.  A.  203.) 

As  to  joinder  of  causes  of  action  under  copyright  act,  see  L.  A. 
Westermann  Co.  v.  Dispatch  Printing  Co.  (6th  Cir.),  233  Fed. 
609,  61*,  147  C.  C.  A.  417. 

A  bill  for  the  foreclosure  of  two  mortgages  is  not  multifarious, 
but  within  Equity  Rule  26  above  quoted,  permitting  the  joinder 
of  causes  of  action  when  it  will  promote  the  convenient  admin- 
istration of  justice.  (Crawford  v.  Washington  Northern  E.  Co., 
233  Fed.  961,  966,  147  C.  C.  A.  635.) 

§753.  Causes  of  Action  must  be  Within  Court's  Jurisdiction 
to  be  Joined.  Under  Equity  Rule  26,  authorizing  a  joinder  of 
causes  of  action,  a  suit  of  which  a  federal  court  has  jurisdiction 
because  of  the  nature  of  the  cause  of  action  cannot  be  used  as  a 
means  for  bringing  within  its  jurisdiction  a  different  cause  of 
action  between  the  same  parties,  over  which  the  court  would  have 
jurisdiction  only  on  the  ground  of  diversity  of  citizenship  which 
does  not  exist.  (Vose  v.  Roebuck  Weatherstrip  &  Wire  Screen 
Co.,  210  Fed.  687.) 

Thus  in  Unit  Const.  Co.  v.  Huskey  Mfg.  Co.,  241  Fed.  129,  it 
was  held  that  a  federal  court  is  not  given  jurisdiction  of  a  suit 
for  unfair  competition  between  citizens  of  the  same  state  by  the 
fact  that  it  is  joined  with  a  cause  of  action  for  infringement  of 
a  patent,  nor  because  the  unfair  competition  charged  is  con 


343  JOINDER  OF  CAUSES  OF  ACTION.  Ch.  30,  §  753 

nected  with  the  sale  of  the  alleged  infringing  articles.     (Equity 
'Rule  26  does  not  apply.) 

Patent  infringement  and  unfair  competition  in  trade  are  sepa- 
rate causes  of  action,  distinct  in  their  nature.  Patent  infringe- 
ment is  the  violation  of  an  exclusive  monopoly  created  by  statute, 
while  no  element  of  monopoly  is  im  olved  in  unfair  competition. 


§  7 GO,  Ch.  31  MANUAL  OF  FEDERAL  PROCEDUEE.  344 


CHAPTER  31. 

AMENDMENTS. 
SEC. 

760.  Amendments — Kules  28  and  19. 

761.  Amendments  to  Cure  a  Variance. 

762.  Amendment — Where  Plaintiff  Fails  to  Set  Down  for  Argument  Objec- 

tion in  Answer  for  Defect  of  Parties — Rule  43. 

763.  Amendment  on  Death  of  Party — Rule  45. 

§760.    Amendments— Rules  28  and  19. 

As  of  course. 

Equity  Rule  28.  "The  plaintiff  may,  as  of  course,  amend 
his  bill  before  the  defendant  has  responded  thereto,  but  if  such 
amendment  be  filed  after  any  copy  has  issued  from  the  clerk's 
office,  the  plaintiff  at  his  own  cost  shall  furnish  to  the  solicitor 
of  record  of  each  opposing  party  a  copy  of  the  bill  as  amended, 
unless  otherwise  ordered  by  the  court  or  judge."  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2507;  Foster's  Federal  Practice, 
5th  ed.,  p.  716;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  354, 
355,  362,  363.) 

Under  former  rule  the  plaintiff  was  permitted,  unless  the 
amendments  were  numerous,  to  furnish  copies  of  the  amendments 
only,  with  suitable  references  as  to  their  proper  places  of  in- 
sertion. 

Not  as  of  course. 

If  the  plaintiff  fails  to  amend  before  the  defendant  files  his 
pleading  in  response  to  the  bill,  -his  right  to  do  so  as  of  course  is 
gone,  and  he  must  then  obtain  the  consent  of  the  defendants  or 
leave  of  court  or  of  the  judge  before  his  amendment  can  be 
effective  under  Rule  28. 

Equity  Rule  19.  "The  court  may  at  any  time,  in  further- 
ance of  justice,  upon  such  terms  "as  may  be  just,  permit  any 
process,  proceeding,  pleading  or  record  to  be  amended,  or 
material  supplemental  matter  to  be  set  forth  in  an  amended 


345  AMENDMENTS.  Ch.  31,  §  760 

or  supplemental  pleading.  The  court,  at  every  stage  of  the 
proceeding,  must  disregard  any  error  or  defect  in  the  proceed- 
ing which  does  not  affect  the  substantial  rights  of  the  parties." 
(3.U.  S.  Coinp.  Stats.  1916,  §  1536,  p.  2502;  Foster's  Federal 
Practice,  5th  ed.,  p.  716;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  pp.  201,  286,  321,  354,  586,  729.) 

Any  error  or  defect  in  the  bill  which  does  not  affect  the  sub- 
stantial right  of  party  will  be  disregarded  by  the  court  even  in 
the  absence  of  an  offer  to  amend. 

These  rules,  19  and  28,  covering  the  subject  of  amendments  to 
the  bill,  supplant  former  Equity  Rules  28,  29,  30,  45  and  46,  and 
their  apparent  effect  is  to  greatly  broaden  the  power  of  the 
courts  in  permitting  amendments  at  any  or  all  stages  of  the  pro- 
ceeding. 

An  examination  of  the  decisions  on  this  point  under  the  former 
rule,  however,  discloses  the  fact  that  the  courts  have  always  con- 
sidered that  the  power  of  a  court  of  equity  to  grant  amendments 
is  wholly  discretionary,  and  that  in  furtherance  of  justice  they 
will  not  consider  themselves  hampered  by  the  particular  rules 
in  court.  The  federal  courts  have  always  been  guided  in  this 
regard  by  the  circumstances  of  the  particular  case,  and  Equity 
Rules  19  and  28,  seemingly  more  liberal  than  their  predecessors, 
are  in  reality  little  more  than  the  embodiment  of  the  law  as  it 
has  long  been  construed  by  the  court. 

In  a  case  decided  since  the  above  text  was  written  the  court 
said: 

"The  allowance  or  refusal  of  amendments  is  a  matter  which 
is  largely  within  the  sound  discretion  of  a  trial  court,  and  in 
the  absence  of  a  clear  abuse  thereof  its  action  is  not  review- 
able  on  appeal.  We  cannot  say  that  the  court  grossly  abused 
its  discretion  in  refusing  to  allow  the  bill  to  be  amended.  The 
fact  that  we  might  have  permitted  the  bill  to  be  amended, 
if  we  had  been  in  the  trial  court's  place,  would  not  justify 
us  in  interfering  with  the  exercise  of  that  court's  discretion, 
unless  we  were  satisfied  that  its  discretion  had  been  grossly 
abused."  (Williams  v.  Cobb  (2d  Cir.),  219  Fed.  663,  at  p. 
669,  134  C.  C.  A.  217.) 


f  761,  Ch.  31  MANUAL  OF  FEDERAL  PROCEDURE.  346 

§  761.  Amendments  to  Cure  a  Variance.  It  was  held  to  be 
stating  a  new  cause  of  action  against  which  the  statute  of  limi- 
tations had  run  to  change  a  complaint  for  damages  because  of 
alleged  incompetency  of  a  fellow-servant  known  to  the  employer 
and  not  known  to  the  plaintiff,  where  there  was  failure  to  allege 
negligence,  to  a  complaint  charging  that  plaintiff  was  injured 
through  the  negligent  act  of  a  fellow-servant  and  that  a  statute 
of  Kansas,  within  which  the  injury  occurred,  made  the  railroad 
company  liable  for  the  negligent  act  of  a  fellow-employee,  re- 
gardless of  his  incompetency  and  of  knowledge  thereof.  This 
would  be  a  departure  from  law  to  law.  (Union  Pac.  Ry.  Co.  v. 
Wyler,  158  U.  S.  285,  39  L.  Ed.  983,  15  Sup.  Ct.  877.) 

So,  also,  it  was  a  departure  from  law  to  law  to  change  a  com- 
plaint seeking  damages  for  alleged  breach  of  warranty  in  a 
contract  of  sale  to  one  alleging  rescission  on  the  ground  of  fraud, 
and  seeking  recovery  of  the  purchase  price  paid.  (Whalen  v. 
Gordon,  95  Fed.  305,  37  C.  C.  A.  70.) 

On  a  fact  basis  it  was  held  a  departure  to  change  a  complaint 
for  an  unconditional  recovery  of  property  on  the  ground  of  fraud 
to  a  bill  to  redeem.  (Warner  v.  Godfrey,  186  U.  S.  365,  46  L.  Ed. 
1203,  22  Sup.  Ct.  852.) 

On  the  other  hand,  where  the  broad  basis  of  fact  was  the  injury 
to  plaintiff,  without  fault  or.  his  part,  through  the  negligence 
of  the  railway  company  with  respect  to  the  appliances  on  which 
he  was  working  at  the  time,  it  was  held  not  to  be  a  departure  to 
change  the  original  declaration  charging  negligence  on  account 
of  "the  defective  condition  of  the  cross-ties  and  roadbed"  to  a 
charge  that  plaintiff  was  injured  "on  account  of  the  drawhead 
and  coupling-pin  not  being  suitable  to  the  purpose  for  which  they 
were  used;  he  being  ignorant  thereof  and  of  the  defective  con- 
dition of  the  tracks."  (Texas  &  P.  Ry.  Co.  v.  Cox,  145  U.  S.  593, 
36  L.  Ed.  829,  12  Sup.  Ct.  905.) 

Prom  an  analysis  of  these  cases  and  under  Equity  Rule  19  the 
circuit  court  of  appeals  (7th  circuit),  affirmed  a  decree  where  an 
amendment  to  the  complaint  had  been  permitted  where  the  bill 
was  to  enforce  a  statutory  lien  for  work  done  under  a  certain 


347  AMENDMENTS.  Ch.  31,  §§  762-763 

contract  and  oral  modification  and  the  amended  bill  set  up  the 
same  statutory  right  but  alleged  an  adoption  with  a  modifica- 
tion of  the  contract  set  up  in  the  original  contract.  (Galesburg 
&  K.  El.  Co.  v.  Hart,  221  Fed.  7,  136  C.  C.  A.  533.) 

§762.    Amendment — Where  Plaintiff  Fails  to  Set  Down  for 
Argument  Objection  in  Answer  for  Defect  of  Parties — Rule  43. 

Equity  Rule  43.  "Where  the  defendant  shall  by  his  an- 
swer suggest  that  the  bill  of  complaint  is  defective  for  want 
of  parties,  the  plaintiff  may,  within  fourteen  days  after  answer 
filed,  set  down  the  cause  for  argument  as  a  motion  upon  that 
objection  only ;  and  where  the  plaintiff  shall  not  so  set  down 
his  cause,  but  shall  proceed  therewith  to  a  hearing,  notwith- 
standing an  objection  for  want  of  parties  taken  by  the  answer. 
he  shall  not  at  the  hearing  of  the  cause,  if  the  defendant's 
objection  shall  then  be  allowed,  be  entitled  as  of  course  to 
an  order  to  amend  his  bill  by  adding  parties;  but  the  court 
shall  be  at  liberty  to  dismiss  the  bill,  or  to  allow  an  amend- 
ment on  such  terms  as  justice  may  require."  (3  U.  S.  Comp. 
Stats.  1916,  §1536,  p.  2515;  Foster's  Federal  Practice,  5th 
ed.,  §  129,  p.  456;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  262,  264,  426.) 

§  763.    Amendment  on  Death  of  Party— Rule  45. 

Equity  Rule  45.  "In  the  event  of  the  death  of  either  party 
the  court  may,  in  a  proper  case,  upon  motion,  order  the  suit 
to  be  revived  by  the  substitution  of  the  proper  parties.  If 
the  successors  or  representatives  of  the  deceased  party  fail  to 
make  such  application  within  a  reasonable  time,  then  any  other 
party  may,  on  motion,  apply  for  such  relief,  and  the  court, 
upon  any  such  motion,  may  take  the  necessary  orders  for 
notice  to  the  parties  to  be  substituted  and  for  the  filing  of 
such  pleadings  or  amendments  as  may  be  necessary."  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2515 ;  Foster's  Federal  Practice, 
5th  ed.,  §216,  p.  736,  §221,  p.  750,  §224,  p.  753;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  pp.  379,  381,  382,  383,  442.) 


§§  770-771,  Ch.  32    MANUAL  OP  FEDERAL  PROCEDURE.  348 


CHAPTER  32. 

SUPPLEMENTAL    PLEADING. 
SEO. 

770.  The  Equity  Rule— No.  34. 

771.  Supplemental   Pleading   Used   to   Bring  in   Matters   Occurring   Since 

Original  Pleading  Filed. 

772.  Allowance  of  Supplemental  Pleadings  in  Court's  Discretion. 

773.  Equity  Rule  35  as  to  Form  of  Supplemental  Pleading. 

§  770.    The  Equity  Rule— No.  34. 

Equity  Ride  34.  "Upon  application  of  either  party,  the 
court  or  judge,  may,  upon  reasonable  notice  and  such  terms 
as  are  just,  permit  him  to  file  and  serve  a  supplemental  plead- 
ing, alleging  material  facts  occurring  after  his  former  plead- 
ing, or  of  which  he  was  ignorant  when  it  was  made,  including 
the  judgment  or  decree  of  a  competent  court  rendered  after 
the  commencement  of  the  suit,  determining  the  matters  in  con- 
troversy or  a  part  thereof."  (3  U.  S.  Comp.  Stats.  1916, 
§1536,  p.  2512;  Foster's  Federal  Practice,  5th  ed.,  §  231 
et  seq.,  p.  765;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  366, 
368,  370,  371,  376,  438,  439.) 

§  771.  Supplemental  Pleading  Used  to  Bring  in  Matters  Occur- 
ring Since  Original  Pleading  Filed.  In  Kryptok  Co.  v.  Hauss- 
mann  &  Co.  (E.  D.  Pa.),  216  Fed.  267,  at  p.  268,  the  court  said: 

"As  the  matters  sought  to  be  brought  into  the  pleadings 
have  occurred  since  the  filing  of  the  original  bill,  they  cannot 
be  brought  in  by  amendment,  but  must  be  by  supplemental 
bill.  If  a  plaintiff  be  without  a  cause  of  action  at  the  time  of 
the  filing  of  his  bill,  he  is  not  helped,  in  the  sense  of  having 
his  action  continued,  by  bringing  in  subsequent  matters  which 
constitute  a  good  cause  of  action  but'  which  are  sought  to  be 
brought  in  after  answer  filed.  A  fortiori  he  would  not  be 
entitled  to  a  preliminary  injunction  in  the  same  suit.  The 
legal  effect,  however,  of  the  matters  sought  to  be  introduced 
here  does  not  go  to  the  existence  of  an  original  cause  of  action 


349  SUPPLEMENTAL  PLEADING.         Ch.  32,  §§  772-773 

but  to  a  confirmation  of  it,  out  of  or  from  which,  as  a  matter 
of  practice,  the  allowance  of  certain  incidental  rights  flow. 

"Rule  34  was  adopted  to  meet  just  such  a  contingency,  and 
is  directly  applicable  in  the  present  case." 

§  772.  Allowance  of  Supplemental  Pleadings  in  Court's  Dis- 
cretion. Under  old  Rule  57,  now  Equity  Rule  34,  the  action  of 
the  court,  in  refusing  to  permit  supplemental  pleadings,  could 
be  reviewed  only  in  case  of  gross  abuse  of  discretion.  (Liebiging 
v.  Matthews  (8th  Cir.),  216  Fed.  1,  132  C.  C.  A.  245.) 

§  773.    Equity  Rule  35  as  to  Form  of  Supplemental  Pleading. 

Equity  Rule  35.  "It  shall  not  be  necessary  in  any  bill  of 
revivor  or  supplemental  bill  to  set  forth  any  of  the  state- 
ments in  the  original  suit,  unless  the  special  circumstances 
of  the  case  may  require  it."  (3  U.  S.  Comp.  Stats.  1916, 
§1536,  p.  2512;  Foster's  Federal  Practice,  5th  ed.,  §  223, 
p.  752,  and  §232,  p.  772;  Simkins' Federal  Equity  Suit,  3d 
ed.,  pp.  372,  375,  383.) 


§§  780  781.  Oh.  33     MANUAL,  or  FEDERAL  PROCEDURE.  350 


CHAPTER  33. 

EEVIVOR. 

SEC. 

780.  The  Equity  Rule— No.  45. 

781.  Eevivor  may  be  Made  by  Motion- — Time. 

782.  Eevival  in  Stockholder's  Suit. 

§  780.     The  Equity  Rule— No.  45. 

Equity  Rule  45.  Death  of  party — Eevivor.  "In  the  event 
of  the  death  of  either  party  the  court  may,  in  a  proper  case, 
upon  motion,  order  the  suit  to  be  revived  by  the  substitution 
of  the  proper  parties.  If  the  successors  or  representatives  of 
the  deceased  party  fail  to  make  such  application  within  a 
reasonable  time,  then  any  other  party  may,  on  motion,  apply 
for  such  relief,  and  the  court,  upon  any  such  motion,  may 
make  the  necessary  orders  for  notice  to  the  parties  to  be  sub- 
stituted and  for  the  filing  of  such  pleadings  or  amendments 
as  may  be  necessary."  (3  U.  S.  Comp.  Stats.  1916,  §  1536, 
p.  2515;  Foster's  Federal  Practice,  5th  ed.,  pp.  736,  750,  753; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  379  et  seq.,  and 
p.  442.) 

This  is  a  new  rule  superseding  old  Rule  56. 

§  781.  Reviver  may  be  Made  by  Motion — Time.  In  Spring  v. 
Webb  (D.  Vt.),  227  Fed.  481,  the  court  held  that  revivor  should 
be  moved  within  a  reasonable  time  after  plaintiff's  death,  other- 
wise a  motion  to  dismiss  was  proper.  The  court  said: 

"Bills  of  revivor  are  cumbrous  survivals  of  antiquity,  and 
in  my  judgment  Rule  45  was  intended  to  regulate  and  make 
identical  the  method  of  revival  and  the  method  of  penalizing 
a  failure  to  revive;  i.  e.,  to  make  simple  motions  applicable 
to  both  contingencies." 

This  is  a  different  rule  of  procedure  from  that  established 
Under  old  Rule  56.  (Dillard  's  Admr.  v.  Central  Virginia  Iron 


351  REVIVOB.  Ch  33  §  782 

Co.,  125  Fed.  157;  Fitzpatrick  v.  Domingo,  14  Fed.  216,  4  Woods, 
163;  Brown  v.  Fletcher,  140  Fed.  639.) 

§§  955  and  956,  Rev.  Stats.,  quoted  above  in  §§  561  and  562, 
together  with  Equity  Rule  45,  control  the  revival  of  actions  in 
the  federal  courts,  the  equity  rule,  of  course,  not  applying  to  law 
actions. 

V 

§782.  Revival  in  Stockholder's  Suit.  A  stockholder's  suit,  in 
which  the  bill  charges  the  failure  or  refusal  of  the  corporation 
to  bring  action  for  torts  against  the  defendants,  is  capable  of 
revivor,  after  the  death  of  the  original  plaintiff,  in  the  name 
of  any  other  shareholder  similarly  situated,  or  in  the  name  of 
the  deceased  plaintiff's  executors,  if  his  shares  of  stock  have  de- 
scended to  them,  even  conceding  that  actions  of  tort  fail  with 
the  death  of  the  plaintiff  under  the  state  law,  and  that  the 
United  States  courts  obey,  in  respect  of  abatement  and  revival, 
the  laws  of  the  state  in  which  they  sit,  since  the  cause  of  action 
put  forward  in  a  stockholder's  suit  is  derivative,  and  the  stock- 
holder's primary  right  of  the  corporation,  which  does  not  fail 
with  the  stockholder's  death.  (Spring  v.  Webb  (D.  Vt.),  227 
Fed.  481.) 


§§  790-791,  Ch.  34    MANUAL  OF  FEDERAL,  PROCEDURE.  352 


CHAPTER  34. 

PROCESS  IN  EQUITY. 
SEO. 

790.  The  Summons  in  Equity  is  the  Subpoena. 

791.  Issue — Form — Eeturn  of  Subpoena. 

792.  The  Precipe. 

793.  The  Subpoena. 

794.  Alias  Subpoenas. 

795.  Process  in  Behalf  of  and  Against  Persons  not  Partiet. 

796.  Process  by  Whom  Served. 

797.  Manner  of  Serving  Subpoenas. 

798.  Forms  of  Eeturns. 

799.  Form  of  Process  and  Eeturn — How  Governed. 

800.  Substituted  Service. 

§  790.    The  Summons  in  Equity  is  the  Subpoena. 

Equity  Rule  7.  "The  process  of  subpoena  shall  constitute 
the  proper  mesne  process  in  all  suits  of  equity,  in  the  first  in- 
stance, to  require  the  defendant  to  appear  and  answer  the 
bill."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2498;  Foster's 
Federal  Practice,  5th  ed.,  pp.  570,  574;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  pp.  312,  313.) 

§791.    Issue — Form — Return  of  Subpoena. 

Equity  Rule  12.  "Whenever  a  bill  is  filed,  and  not  before, 
the  clerk  shall  issue  the  process  of  subpoena  thereon,  as  of 
course,  upon  the  application  of  the  plaintiff,  which  shall  con- 
tain the  names  of  the  parties  and  be  returnable  into  the  clerk 's 
office  twenty  days  from  the  issuing  thereof.  At  the^  bottom 
of  the  subpoena  shall  be  placed  a  memorandum,  that  the  de- 
fendant is  required  to  file  his  answer  or  other  defense  in  the 
clerk's  office  on  or  before  the  twentieth  day  after  service, 
excluding  the  day  thereof;  otherwise  the  bill  may  be  taken 
pro  confesso.  Where  there  are  more  than  one  defendant,  a 
writ  of  subpoena  may,  at  the  election  of  the  plaintiff,  be  sued 
out  separately  for  each  defendant,  or  a  joint  subpoena  against 
all  the  defendants."  (3  U.  S.  Comp.  Stats.  1916,  §  1536, 


353  PROCESS  IN  EQUITY.  Ch.  34,  §§  792-71)3 

p.  2500;  Foster's  Federal  Practice,  5th  ed.,  pp.  570,  571; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  285,  313,  318,  319, 
330,  385,  394,  406,  431,  454.) 

§792.  The  Precipe.  The  "application  of  the  plaintiff"  men- 
tioned in  Rule  12  (§791,  above)  is  called  the  "precipe."  This 
is  a  printed  form  which  may  be  obtained  from  the  clerk.  The 
following  form  is  suggested: 

United  States  of  America. 

District  Court  of  the  United  States,  District  of  — — ,  Division. 

^1    Clerk's  Office. 


vs.  >  No. 


Precipe 


To  the  Clerk  of  Said  Court,  Sir: 

Please  issue  -  . 

After  the  words  "please  issue"  there  may  be  inserted  the  following.- 
Subpoena  for  the  defendants  [naming  them], 

Dated  -  . 

-  ,  Attorney  for  Plaintiff. 

§  793.  The  Subpoena.  After  filing  of  the  bill  and  the  precipe, 
the  clerk  will  issue,  sign,  and  seal  a  subpoena.  The  subpoena  is  a 
printed  form  entitled  in  the  court  from  which  it  issues,  and  under 
§911,  Rev.  Stats.  (§522,  supra),  it  is  in  the  name  of  the  Presi- 
dent of  the  United  States  bearing  teste  of  the  judge  of  the  district 
court.  The  following  form  is  sufficient  : 

United  States  of  America. 

District  Court  of  the  United  States,  -  District  of  -  ,  -  Division. 

In  Equity. 

The  President  of  the  United  States  of  America,  Greeting. 

To  -  : 

You  are  hereby  commanded  to  appear  in  said  district  court  of  the  United 
States  aforesaid  within  the  time  specified  in  the  memorandum  below  to 
file  your  answer  or  other  defense  to  a  bill  of  complaint  exhibited  against 
you  in  said  court  by  -  who  -  citizen  of  the  -  and  to  do  and  re- 
ceive what  the  court  shall  have  considered  in  that  behalf^  And  this  you 
are  not  to  omit  under  penalty  of  five  thousand  dollars. 
Manual  —  28 


§§  794-795,  Ch.  34    MANUAL  OP  FEDERAL  PROCEDURE.  354 

Witness  the  'Honorable  district  judge  of  said   court  this  day 

of in  the  year  of  our  Lord  one  thousand  nine  hundred and  of  our 

Independence,  one  hundred  and  — — » 

,  Clerk. 

By  ,  Deputy  Clerk. 

Memorandum  Pursuant  to  Equity  Eule  12. 

You  are  hereby  required  to  file  your  answer  or  other  defense  in  the  above 
suit  in  the  clerk's  office  of  said  court  pursuant  to  said  bill,  on  or  before 
the  twentieth  day  after  service  hereof  upon  you,  excluding  the  day  thereof, 
otherwise  the  said  bill  will  be  taken  pro  confesso. 

,  Clerk. 

By  ,  Deputy  Clerk. 


§  794.  Alias  Subpoenas.  Inasmuch  as  the  subpoena  is  return- 
able into  the  clerk's  office  twenty  days  from  the  issuing  thereof, 
it  will  frequently  happen  that  there  will  be  a  failure  to  serve 
within  the  time  in  which  the  subpoena  must  be  returned.  If 
service  be  not  made  within  the  time  limited  an  alias  subpoena 
may  issue. 

Equity  Rule  14.  "Whenever  any  subpoena  shall  be  re- 
turned not  executed  as  to  any  defendant,  the  plaintiff  shall 
be  entitled  to  other  subpoenas  against  such  defendant,  until 
due  service  is  made."  (3  U.  S.  Comp.  Stats.  1916,  §  1536, 
p.  2501;  Foster's  Federal  Practice,  5th  ed.,  p.  573;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  p.  313.) 

§  795.    Process  in  Behalf  of  and  Against  Persons  not  Parties. 

Equity  Rule  11.  "Every  person,  not  being  a  party  in  any 
cause,  who  has  obtained  an  order,  or  in  whose  favor  an  order 
shall  have  been  made,  may  enforce  obedience  to  such  order  by 
the  same  process  as  if  he  were  a  party ;  and  every  person,  not 
being  a  party,  against  whom  obedience  to  any  order  of  the 
court  may  be  enforced,  shall  be  liable  to  the  same  proceas 
for  enforcing  obedience  to  such  orders  as  if  he  were  a  party." 
(3  U.  S.  Comp.  Stats.  1916.  §  1536,  pp.  2499,  2500;  Foster's 
Federal  Practice,  5th  ed.,  p.  1343;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  p.  590.) 


355  PROCESS  IN  EQUITY.  Ch.  34,  §§  796-798 

§  796.    Process  by  Whom  Served. 

Equity  Rule  15.  "The  service  of  all  process,  mesne  and 
final,  shall  be  by  the  marshal  of  the  district,  or  his  deputy, 
or  by  some  other  person  especially  appointed  by  the  court 
or  judge  for  that  purpose,  and  not  otherwise.  In  the  latter 
case,  the  person  serving  the  process  shall  make  affidavit  there- 
of." (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2501;  Foster's 
Federal  Practice,  5th  ed.,  pp.  574,  576;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  p.  315.) 

Under  this  rule  the  marshal  serves  the  process  in  equity. 
(United  States  v.  Mitchell  (E.  D.  N.  Y.),  223  Fed.  805,  806.) 

§  797.    Manner  of  Serving  Subpoenas. 

Equity  Rule  13.  "The  service  of  all  subpoenas  shall  be 
by  delivering  a  copy  thereof  to  the  defendant  personally,  or 
by  leaving  a  copy  thereof  at  the  dwelling  house  or  usual  place 
of  abode  of  each  defendant,  with  some  adult  person  who  is 
a  member  of  or  resident  in  the  family."  (3  U.  S.  Comp. 
Stats.  1916,  §1536,  p.  2500;  Foster's  Federal  Practice,  5th 
ed.,  p.  574;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  315, 
316.) 

§798.  Forms  of  Returns.  In  the  event  that  the  service  is 
made  on  the  defendant  personally,  the  marshal's  certificate  may 
be  in  the  following  form: 

United  States  Marshal's  Office.       | 

District  of  .  C  BB* 

I  hereby  certify  that  I  received  the  within  writ  on  the  day  of , 

»nd  personally  served  the  same  on  and  by  delivering  to  and  leaving  with 

and  said   defendants  named   therein,   personally,  at   the   county 

of  in  said  district  a  copy  thereof  . 

,  United  States  Marshal. 

By  ,  Deputy. 

Dated  at  


§  799,  Ch.  34          MANUAL  OF  FEDERAL  PROCEDURE.  356 

If  someone  other  than  the  marshal  or  his  deputy  make  service, 
his  affidavit  should  be  in  form  somewhat  as  follows  for  personal 

service : 

r 
State  of  .          | 

County  of .        (   88' 

) 

being  first  duly  sworn  on  oath  says:  That  on  the  day  of  

19 — ,  he  personally  served  same   on  and  by  delivering  to   and 

leaving  with  — —  and  said  defendant  named  therein  personally 

in  the  county  of in  the  said  district,  a  copy  thereof . 

Subscribed  and  sworn  to  before  me  this  day  of  ,  19 — . 

[Seal] 

(Official  Designation.) 

In  the  event  that  the  service  is  not  made  on  the  defendant  per- 
sonally, but  by  substituted  service  authorized  in  the  above-quoted 
Equity  Rule  13  (§797,  above),  the  marshal's  return  or  the  affi- 
davit of  service  as  the  ease  may  be  should  show  this  fact  by 
reciting  that  he  personally  served  the  writ  on  the  defendants 
named  "by  leaving  a  copy  thereof  at  the  dwelling  house  (or  if 
the  defendant  has  no  dwelling  house  then  state  'at  the  usual 
place  of  abode')  of  the  defendant  with  ...  an  adult  person  who 
is  a  member  of  (or  if  not  a  member  state  'who  is  a  resident  in') 
the  family." 

§  799.    Form  of  Process  and  Return — How  Governed. 

§  913,  Rev.  Stats.  ' '  The  forms  of  mesne  process  and  the 
forms  and  modes  of  proceeding  in  suits  of  equity  and  of  ad- 
miralty and  maritime  jurisdiction  in  the  [circuit  and]  district 
courts  shall  be  according  to  the  principles,  rules,  and  usages 
which  belong  to  courts  of  equity  and  of  admiralty,  respectively, 
except  when  it  is  otherwise  provided  by  statute  or  by  rules 
of  court  made  in  pursuance  thereof ;  but  the  same  shall  be  sub- 
ject to  alteration  and  addition  by  the  said  courts,  respectively, 
and  to  regulation  by  the  Supreme  Court,  by  rules  prescribed, 
from  time  to  time,  to  any  [circuit  or]  district  court,  not  in- 
consistent with  the  laws  of  the  United  States."  (6  Fed. 


PROCESS  IN  EQUITY.  Ch.  34,  §  800 

Stats.  Ann.,  2d  ed.,  p.  18 ;  3  U.  S.  Comp.  Stats.  1916,  §  1536, 
p.  2496;  Foster's  Federal  Practice,  5th  ed.,  p.  1428.) 

§922,  Rev.  Stats.  "When  the  marshal  or  his  deputy  is  a 
party  in  any  cause,  the  writs  and  precepts  therein  shall  be 
directed  to  such  disinterested  person  as  the  court  or  any  jus- 
tice or  judge  thereof  may  appoint,  and  the  person  so  appointed 
may  execute- and  return  them."  (6  Fed.  Stats.  Ann.,  2d  ed., 
p.  81;  3  U.  S.  Comp.  Stats.  1916,  §  1548,  p.  3107;  Foster's 
Federal  Practice,  5th  ed.,  p.  575.) 

§  800.  Substituted  Service.  In  Johnson-Brown  Co.  v.  Dela- 
ware, L.  &  W.  R.  Co.  (S.  D.  Ga.)f  239  Fed.  590,  it  was  held  that 
substituted  service  of  a  bill  in  equity  against  a  foreign  corpora- 
tion, made  on  its  attorney  without  any  order  having  been  pro- 
cured therefor,  is  invalid ;  the  proper  procedure  being  to  apply  for 
an  order  for  such  service,  accompanied  by  an  affidavit  showing  its 
necessity. 

In  a  suit  by  a  trustee  in  bankruptcy  to  set  aside  as  a  preference 
an  assignment  of  a  debt  owing  to  the  bankrupt  by  a  nonresi- 
dent, where  the  debtor  admitted  the  debt  and  offered  to,  but 
did  not,  pay  the  money  into  court,  the  court  cannot  obtain  juris- 
diction over  the  assignees,  who  were  nonresidents  of  the  district, 
by  substituted  service  under  Jud.  Code,  §  57  (§  526.  supra},  pro- 
viding that,  in  any  suit  to  enforce  a  lien  on  or  claim  to  real  or 
personal  property  within  the  district  where  the  suit  is  brought, 
an  absent  defendant  may  be  served  with  an  order  to  defend 
wherever  he  may  be  found  or  by  publication,  since  the  jurisdiction 
conferred  by  that  section  rests  on  a  real  and  not  a  constructive 
basis,  and  the  existence  of  the  property  within  the  district  is 
essential  to  the  court's  jurisdiction,  (Murphy  v.  Ford  Motor 
Co.,  241  Fed.  134.) 


§§  810-811,  Ch.  35      MANUAL  OF  FEDERAL  PEGGED UitE.  358 


CHAPTER  35. 

DECREE  PEO   CONPESSO. 

SEO. 

810.  Time  for  Defensive  Pleading  Twenty  Days  After  Service  of  Subpoena. 

811.  Default  When  Taken. 

812.  Pleading  Eequired  to  Save  from  Decree  Pro  Confesso. 

813.  Decree  Pro  Confesso  When  Made  Final. 

§  810.  Time  for  Defensive  Pleading  Twenty  Days  After  Ser- 
vice of  Subpoena. 

Equity  Rule  12.  "  ...  At  the  bottom  of  the  subpoena  shall 
be  placed  a  memorandum,  that  the  defendant  is  required  to  file 
his  answer  or  other  defense  in  the  clerk's  office  on  or  before  the 
twentieth  day  after  service,  excluding  the  day  thereof;  other- 
wise the  bill  may  be  taken  pro  confesso.  .  .  .  '  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2500;  Foster's  Federal  Practice, 
5th  ed.,  pp.  570,  571;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  313,  318,  330,  385,  386,  394,  406,  431.) 

But  the  time  above  mentioned  under  Rule  16  (§  811,  below) 
may  be  enlarged  "for  cause  shown  by  a  judge  of  the  court." 
Rules  12  and  16  should  be  read  together. 

§  811.    Default  When  Taken. 

Equity  Rule  16.  "It  shall  be  the  duty  of  the  defendant, 
unless  the  time  shall  be  enlarged,  for  cause  shown,  by  a  judge 
of  the  court,  to  file  his  answer  or  other  defense  to  the  bill  in 
the  clerk's  office  within  the  time  named  in  the  subpoena  as 
required  by  Rule  12,  quoted  in  the  preceding  section.  In  de- 
fault thereof  the  plaintiff  may,  at  his  election,  take  an  order  as 
of  course  that  the  bill  be  taken  pro  confesso;  and  thereupon 
the  cause  shall  be  proceeded  in  ex  parte."  (3  U.  S.  Comp. 
Stats.  1916,  §  1536,  p.  2501;  Foster's  Federal  Practice,  5th  ed., 
pp.  614,  617,  623,  681;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  330,  385,  386,  387,  390,  394,  406,  431,  454.) 


359  DECREE  PRO  CONFESSO.  Ch.  35,  §  812 

§  812.  Pleading  Required  to  Save  from  Decree  Pro  Confesso. 
In  order  to  save  from  default,  the  defendant,  under  Rule  16 
(§811,  above),  "unless  the  time  shall  be  enlarged  for  cause 
shown,  by  a  judge  of  the  court,"  is  required  "to  file  his  answer 
or  other  defense  to  the  bill  in  the  clerk's  office  within  the  time 
named  in  the  subpoena,  as  required  by  Rule  12  "(§810,  above), 
to  wit,  "on  or  before  the  twentieth  day  after  service,  excluding 
the  day  thereof;  otherwise  the  bill  may  be  taken  pro  confesso." 

What  is  such  "other  defense"  as  will  save  a  defendant  from  the 
taking  of  the  bill  against  him  pro  confessof 

To  avoid  confusion  it  must  be  remembered  that  the  state  rules 
as  to  pleadings  do  not  apply  to  federal  equity  suits,  but  the  fed- 
eral equity  rules  and  decisions  wholly  determine  the  procedure, 
time,  order, -and  manner  of  pleading.  Hence  the  filing  of  a  written 
appearance,  a  motion  for  security  for  costs,  a  demurrer,  a  plea, 
or  any  other  defensive  pleading  not  authorized  by  the  federal 
equity  rules,  would  not  be  sufficient  to  save  from  default  in  a  fed- 
eral equity  suit  even  though  sufficient  in  a  similar  suit  in  the 
state  courts  under  the  state  practice  of  the  state  wherein  the  federal 
court  may  be  located. 

Under  the  new  rules  in  force  February  1,  1913,  the  following 
would  seem  to  come  under  the  term  "other  defense,"  which  would 
save  from  default:  (1)  A  special  appearance  by  motion  to  quash 
the  process  on  some  jurisdictional  ground;  (2)  under  Rule  29, 
motion  to  dismiss  on  certain  points  of  law  arising  upon  the  face  of 
the  bill  (chapter  39,  post}  ;  (3)  under  Rule  20,  a  motion  makes 
more  definite  and  certain  (chapter  41,  post) ;  (4)  under  Rule  21, 
a  motion  to  strike  redundant,  impertinent  or  scandalous  matter 
(chapter  42,  post)  •  (5)  under  Rule  22,  a  motion  to  transfer  to  the 
law  side  an  action  at  law  erroneously  begun  as  a  suit  in  equity 
(chapter  37,  post).  It  is,  however,  not  certain  that  anything  other 
than  a  motion  to  dismiss  is  intended  by  the  term  "other  defense," 
as  there  is  no  time  designated  for  filing  answer  except  after  over- 
ruling any  other  motion  than  a  motion  to  dismiss  or  after  filing  an 
amended  bill. 


§  813,  Ch.  35  MANUAL  OP  FEDERAL  PROCEDURE.  •    360 

§  813.    Decree  Pro  Confesso  When  Made  Final. 

Equity  Rule  17.  "Decree  pro  confesso  to  be  followed  by 
final  decree — setting  aside  default.  When  the  bill  is  taken 
pro  confesso  the  court  may  proceed  to  a  final  decree  at  any 
time  after  the  expiration  of  thirty  days  after  the  entry  of  the 
order  pro  confesso,  and  such  decree  shall  be  deemed  absolute 
unless  the  court  shall,  at  the  same  term,  set  aside  the  same,  or 
enlarge  the  time  for  filing  the  answer,  upon  cause  shown  upon 
motion  and  affidavit.  No  such  motion  shall  be  granted,  unless 
upon  the  payment  of  the  costs  of  the  plaintiff  up  to  that  time, 
or  such  part  thereof  as  the  court  shall  deem  reasonable,  and 
unless  the  defendant  shall  undertake  to  file  his  answer  within 
such  time  as  the  court  shall  direct,  and  submit  to  such  other 
terms  as  the  court  shall  direct,  for  the  purpose  of  speeding 
the  cause."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2501;  Fos- 
ter's Federal  Practice,  5th  ed.,  p.  618;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  pp.  385,  387,  391,  393.) 


361  DEFENSIVE  PLEADINGS — EQUITY.      Ch.  36,  §§  820-821 


CHAPTER   36. 

DEFENSIVE  PLEADINGS— EQUITY, 

SEC. 

820.  Kinds  of  Defensive  Pleading. 

821.  Motion  Day. 
«22.     Notices. 

823.  Motions  Gran  table  of  Course. 

824.  Defect  of  Parties. 

825.  Notice  of  Orders. 

§  820.  Kinds  of  Defensive  Pleading.  Under  Equity  Rule  29 
(chapter  39,  post},  demurrers  and  pleas  are  abolished,  and  under 
Equity  Rule  21  (chapter  42,  post),  the  right  to  except  to  bills 
and  other  proceedings  for  scandal  or  impertinence  shall  not  ob- 
tain. The  old  forms  have  evidently  been  abandoned  so  that  the 
new  proceedings  will  not  be  confused  by  them.  All  defenses 
are  made  either  by  motions  or  in  the  answer,  and  all  issues  not 
requiring  trial  of  the  principal  case  may  be  determined  on  short 
notice  before  the  trial. 

§  821.    Motion  Day. 

Equity  Rule  6.  "Each  district  court  shall  establish  regu- 
lar times  and  places,  not  less  than  once  each  month,  when 
motions  requiring  notice  and  hearing  may  be  made  and  dis- 
posed of;  but  the  judge  may  at  any  time  and  place,  and  on 
such  notice,  if  any,  as  he  may  consider  reasonable,  make  and 
direct  all  interlocutory  orders,  rulings  and  proceedings  for 
the  advancement,  conduct  and  hearing  of  causes.  If  the  pub- 
lic interest  permits,  the  senior  circuit  judge  of  the  circuit 
may  dispense  with  the  motion  day  during  not  to  exceed  two 
months  in  the  year  in  any  district."  (3  U.  S.  Comp.  Stats 
1916,  §1536,  p.  2498;  Foster's  Federal  Practice,  5th  ed., 
p.  804;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  129,  204, 
307,  310,  311.) 


§  822,  Ch.  36          MANUAL  OF  FEDERAL  PROCEDURE.  362 

§  822.    Notices. 

Second  Paragraph  Equity  Rule  1.  "...  Any  district  judge 
may,  upon  reasonable  notice  to  the  parties,  make,  direct,  and 
award,  at  chambers  or  in  the  clerk's  office,  and  in  vacation  as 
well  as  in  term,  all  such  process,  commissions,  orders,  rules, 
and  other  proceedings,  whenever  the  same  are  not  grantable 
of  course,  according  to  the  rules  and  practice  of  the  court." 
(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2497;  Foster's  Federal 
Practice,  5th  ed.,  §251,  p.  798;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  pp.  309,  332,  371,  402.) 

Part  Equity  Rule  6.  "  .  .  .  but  the  judge  may  at  any  time 
and  place,  and  on  such  notice,  if  any,  as  he  may  consider 
-  reasonable,  make  and  direct  all  interlocutory  orders,  rulings, 
and  proceedings  for  the  advancement,  conduct,  and  hearing 
of  causes."  (3  U.  S.  Comp.  Stats.  1916,  §1536,  p.  2498; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  129,  204,  310,  311, 
332,  371,  402,  404,  414.) 

Part  Equity  Rule  29.  "...  If  the  defendant  move  to 
dismiss  the  bill  or  any  part  thereof,  the  motion  may  be  set 
down  for  hearing  by  either  party  upon  five  days'  notice,  and, 
if  it  be  denied,  answer  shall  be  filed  within  five  days  there- 
after or  a  decree  pro  confesso  entered."  (3  U.  S.  Comp. 
Stats.  1916,  §  1536,  p.  2508.) 

Part  Equity  Rule  73.  "...  Upon  two  days'  notice  to  the 
party  obtaining  such  temporary  restraining  order,  the  op- 
posite party  may  appear  and  move  the  dissolution  or  modifica- 
tion of  the  order,  and  in  that  event  the  court  or  judge  shall 
proceed  to  hear  and  determine  the  motion  as  expeditiously 
as  the  ends  of  justice  may  require.  .  .  .  '  (3  U.  S.  Comp. 
Stats.  1916,  §1536,  p.  2526;  Foster's  Federal  Practice,  5th 
ed.,  §255,  p.  815,  §257,  p.  817,  §291,  p.  905;  Simkins'  Fed- 
eral Equity  Suit,  3d  ed.,  p.  475.) 

Under  Equity  Rule  33  (Chapter  46,  post)  the  plaintiff  on  five 
days'  notice,  or  such  further  time  as  the  court  may  allow,  tests 
the  sufficiency  of  an  affirmative  defense  in  the  answer  by  a  mo- 
tion to  strike  out. 


363  DEFENSIVE  PLEADINGS — EQUITY.      Ch.  36,  §§  823-824 

§  823.    Motions  Grantable  of  Course. 

Equity  Bide  5.  "All  motions  and  applications  in  the 
clerk's  office  for  the  issuing  of  mesne  process  or  final  process 
to  enforce  and  execute  decrees;  for  taking  bills  pro  confesso; 
and  for  other  proceedings  in  the  clerk's  office  which  do  not 
require  any  allowance  or  order  of  the  court  or  of  a  judge, 
shall  be  deemed  motions  and  applications  grantable  of  course 
by  the  clerk;  but  the  same  may  be  suspended  or  altered  or 
rescinded  by  the  judge  upon  special  cause  shown."  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2498;  Foster's  Federal  Practice, 
5th  ed.,  pp.  797,  819;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  306,  310;  Columbia  Metal  Box  Co.  y.  Halper,  220  Fed.  912, 
136  C.  C.  A.  478.) 

§  824.    Defect  of  Parties. 

Equity  Rule  43.  "Where  the  defendant  shall  by  his  answer 
suggest  that  the  bill  of  complaint  is  defective  for  want  of 
parties,  the  plaintiff  may,  within  fourteen  days  after  answer 
filed,  set  down  the  cause  for  argument  as  a  motion  upon  that 
objection  only;  and  where  the  plaintiff  shall  not  so  set  down 
his  cause,  but  shall  proceed  therewith  to  a  hearing,  notwith- 
standing an  objection  for  want  of  parties  taken  by  the  answer, 
he  shall  not  at  the  hearing  of  the  cause,  if  the  defendant's 
objection  shall  then  be  allowed,  be  entitled  as  of  course  to  an 
order  to  amend  his  bill  by  adding  parties ;  but  the  court  shall 
be  at  liberty  to  dismiss  the  bill,  or  to  allow  an  amendment  on 
such  terms  as  justice  may  require."  (3  U.  S.  Comp.  Stats. 
1916,  §  1536,  p.  2515;  Foster's  Federal  Practice,  5th  ed.,  §  129, 
p.  456;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  262,  264, 
426.) 

Equity  Rule  44.  "If  a  defendant  shall,  at  the  hearing  of 
a  cause,  object  that  a  suit  is  defective  for  want  of  parties,  not 
having  by  motion  or  answer  taken  the  objection  and  therein 
specified  by  name  or  description  the  parties  to  whom  the  ob- 
jection applies,  the  court  shall  be  at  liberty  to  make  a  decree 
saving  the  rights  of  the  absent  parties."  (3  U.  S.  Comp. 
Stats.  1916,  §1536,  p.  2515;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  pp.  263,  427.) 


§  825,  Ch.  36  MANUAL  OF  FEDERAL  PROCEDURE.  364 

§  825.    Notice  of  Orders. 

Equity  Rule  4.  "Neither  the  noting  of  an  order  in  the 
equity  docket  nor  its  entry  in  the  order  book  shall  of  itself  be 
deemed  notice  to  the  parties  or  their  solicitors;  and  when  an 
order  is  made  without  prior  notice  to,  and  in  the  absence  of, 
a  party,  the  clerk,  unless  otherwise  directed  by  the  court  or 
judge,  shall  forthwith  send  a  copy  thereof,  by  mail,  to  such 
party  or  his  solicitor  and  a  note  of  such  mailing  shall  be  made 
in  the  equity  docket,  which  shall  be  taken  as  sufficient  proof 
of  due  notice  of  the  order."  (3  U.  S.  Comp.  Stats.  1916, 
§1536,  p.  2498;  Foster's  Federal  Practice,  5th  ed.,  pp.  798, 
813,  819,  1364;  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  309.) 


365  TRANSFERRING  TO  LAW  SIDE.  Ch.  37,  £ 


CHAPTER  37. 

TRANSFERRING  TO  LAW  SIDE— ADEQUATE  REMEDY  AT  LAW. 

SEC. 

840.  Action  at  Law  Erroneously  Begun  as  Suit  in  Equity  to  be  Transferred 

to  Law  Side  Under  Rule  22. 

841.  Amendment  of  Pleadings  to  Conform  Action  to  Proper  Side  of  Court — 

Law  or  Equity. 

842.  Amendment  Setting  Up  a  New  Cause  of  Action  Does  not  Relate  Back  to 

Prevent  Bar  of  Statute  of  Limitations. 

843.  Motion  Should  be  to  Transfer  to  Law  Side  Under  Rule  22  or  to  Deter- 

mine  Questions   of  Law  Under   Rule   23,   and   not   to   Dismiss   Under 
Rule  29. 

844.  Rules  22  and  23  Do  not  Change  Mode  of  Beginning  a  Suit  in  Equity. 

845.  Equity  Suits  not  Maintainable  Where  Legal  Remedy  Adequate. 

846.  What  is  an  Adequate  Remedy  at  Law. 

847.  Necessity  of  Mixed  Character  of  Remedies  Gives  Equity  Jurisdiction  as 

Legal  Remedy  Alone  is  not  Then  Adequate. 

848.  Where  Recovery   of  Money  is  Only   Relief  Sought   Remedy   at  Law   is 

Adequate. 

849.  Where  Account  may  be  Adjusted  by  Jury  Remedy  at  Law  Adequate. 

850.  Where  Remedy  at  Law  Does  not  Afford  a  Practical  and  Efficient  Result 

Equity  may  Take  Jurisdiction. 

851.  When  Legal  Remedy  Need  not  be  Exhausted  to  Maintain  Creditor's  Bill. 

§840.  Action  at  Law  Erroneously  Begun  as  Suit  in  Equity 
to  be  Transferred  to  Law  Side  Under  Rule  22. 

Equity  Rule  22.  "If  at  any  time  it  appear  that  a  suit  com- 
menced in  equity  should  have  been  brought  as  an  action  on 
the  law  side  of  the  court,  it  shall  be  forthwith  transferred  to 
the  law  side  and  be  there  proceeded  with,  with  only  such 
alteration  in  the  pleadings  as  shall  be  essential."  (3  U.  S. 
Comp.  Stats.  1916,  §1536,  p.  2502;  Foster's  Federal  Prac- 
tice, 5th  ed.,  pp.  336r  725,  1184;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  pp.  27,  28,  29,  302,  552.) 

Under  this  rule  the  motion  is  to  transfer  to  the  law  side  and 
not  to  dismiss.  (Corsicana  National  Bank  v.  Johnson  (5th  Cir.), 
218  Fed.  822,  134  C.  C.  A.  510.) 


§  841,  Ch.  37  MANUAL  OP  FEDERAL  PROCEDURE.  366 

Plaintiff  should  not  be  turned  out  of  court  but  should  be  per- 
mitted to  alter  his  complaint  by  adopting  such  parts  thereof  as 
he  may  be  able  to  utilize  as  a  basis  for  his  complaint  at  law. 
(Watson  v.  Huntington  (2d  Cir.),  215  Fed.  472,  131  C.  C.  A. 
520.) 

The  rule  is  much  broadened  by  the  Act  of  March  3,  1915,  c.  90, 
adding  §  274a  to  the  Judicial  Code,  quoted  in  §  841,  below. 

"The  rule  and  the  statute  have  swept  away  any  and  all 
technical  objection  whatever,  and  a  motion  to  dismiss  on  the 
ground  of  an  adequate  remedy  at  law  will  not  lie."  (Collins 
v.  Bradley  (W.  D.  Wis.),  227  Fed.  199,  201.)  • 

Under  the  above  rule  a  motion  was  made  to  transfer  the  case 
to  the  law  side  of  the  court.  With  the  exception  of  a  claim  for 
a  balance  of  salary,  the  subject  matter  of  the  suit  was  held  to  be 
equitable  and  the  motion  denied,  under  Equity  Rule  23  quoted, 
§  860  below.  (Wright  v.  Barnard,  233  Fed.  329,  330,  331.) 

§  841.  Amendment  of  Pleadings  to  Conform  Action  to  Proper 
Side  of  Court — Law  or  Equity. 

§  274a,  Jud.  Code,  Added  by  Amendment  March  3,  1915, 
c.  90.  "That  in  case  any  of  said  courts  shall  find  that  a  suit 
at  law  should  have  been  brought  in  equity  or  a  suit  in  equity 
should  have  been  brought  at  law,  the  court  shall  order  any 
amendments  to  the  pleadings  which  may  be  necessary  to  con- 
form them  to  the  proper  practice.  Any  party  to  the  suit  shall 
have  the  right,  at  any  stage  of  the  cause,  to  amend  his  plead- 
ings so  as  to  obviate  the  objection  that  his  suit  was  not  brought 
on  the  right  side,  of  the  court.  The  cause  shall  proceed  and 
be  determined  upon  such  amended  pleadings.  All  testimony 
taken  before  such  amendment,  if  preserved,  shall  stand  as  tes- 
timony in  the  cause  with  like  effect  as  if  the  pleadings  had 
been  originally  in  the  amended  form."  (38  Stats.  956; 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1059 ;  2  U.  S.  Comp.  Stats.  1916, 
§1251a,  p.  2023;  Waldo  v.  Wilson  (4th  Cir.),  231  Fed.  654, 
145  C.  C.  A.  540;  Webb  v.  Southern  R.  Co.  (S.  D.  Ala.),  235 
Fed.  578;  National  Surety  Co.  v.  United  States  (6th  Cir.), 
228  Fed.  577,  L.  R.  A.  1917A,  336,  143  C.  C.  A.  99.) 


367  ^TRANSFERRING  TO  LAW  SIDE.      Ch.  37,  §§  842-843 

§  842.  Amendment  Setting  Up  a  New  Cause  of  Action  Does 
not  Relate  Back  to  Prevent  Bar  of  Statute  of  Limitations. 
Where  a  bill  to  rescind  a  sale  of  land  'for  fraud  and  to  recover 
incidental  damages  was  transferred  to  the  law  side  of  the  court 
under  Equity  Rule  22,  because  the  plaintiff  has  put  it  out  of  his 
power  to  restore  the  vendor  to  his  former  position,  an  amended 
petition  claiming  damages  for  the  fraud,  if  allowable,  sets  up  a 
new  cause  of  action,  and  did  not  relate  back  to  the  filing  of  the 
original  bill,  so  that  it  was  barred  where  four  years  had  elapsed 
after  the  discovery  of  the  fraud  before  the  filing  of  the  amend- 
ment. (Friederichsen  v.  Renard  (8th  Cir.),  231  Fed.  882,  146 
C.  C.  A.  78.) 

§  843.  Motion  Should  be  to  Transfer  to  Law  Side  Under  Rule 
22  or  to  Determine  Questions  of  Law  Under  Rule  23  and  not  to 
Dismiss  Under  Rule  29.  In  Goldschmidt  Thermit  Co.  v.  Primos 
Chemical  Co.  (E.  D.  Pa.),  216  Fed.  382,  at  page  383,  the  court 
said  on  a  motion  to  dismiss: 

"...  as  the  decree  of  a  chancellor  is  always  of  grace,  and  is 
never  the  absolute  right  of  a  litigant,  the  courts  will  refuse 
to  entertain  jurisdiction,  where  the  averments  which  confer 
it  are  wholly  colorable,  and  relief  is  vainly  asked  through  a 
purely  equitable  remedy  for  the  mere  purpose  of  giving  juris- 
diction, in  order  to  grant  other  relief  which  may  be  obtained 
at  law.  In  other  words,  it  is  not  that  the  courts  do  not  have 
jurisdiction,  but  that  they  refuse  to  exercise  it.  The  strength 
of  the  plaintiff's  appeal  to  have  its  bill  entertained  is  in  its 
contention  that  a  suit  for  damages  would  not  enable  it  to  get 
that  to  which  it  is  entitled. 

"This  feature  of  the  case  of  the  plaintiff  was  recognized  in 
Tompkins  v.  International  Paper  Co.,  183  Fed.  773,  106 
C.  C.  A.  529,  and  it  there  saved  the  bill  from  dismissal.  It 
cannot  at  this  stage  of  the  case  be  found  that  this  is  not  the 
situation  of  the  present  plaintiff.  Thus  seems  ta  stand  the 
case  without  reference  to  the  equity  rules.  By  what  token, 
however,  can  these  rules  be  ignored?  They  are  directly  ap- 
plicable to  the  question  now  raised  and  disposed  of  it.  Rule 
22  expressly  provides  what  shall  be  done  'at  any  time  it  ap- 


§  843,  Ch.  37          MANUAL  OF  FEDERAL  PROCEDURE.  368 

pears'  that  the  suit  should  have  been  brought  at  law.  More 
than  this,  Rule  23  commands  us  not  to  dismiss  a  bill  on  this 
ground.  The  case  may  be  proceeded  with,  and  when  it  ap- 
pears, if  it  does  develop,  that  this  case  should  be  tried  at  law 
and  the  amount  of  damages  assessed  by  the  verdict  of  a  jury, 
this  may  be  done." 

In  Goldschmidt  Thermit  Co.  v.  Primes  Chemical  Co.  (E.  D. 
Pa. ) ,  225  Fed.  769,  at  page  775,  the  court  said  on  motion  to  transfer 
to  the  law  side: 

"The  administrative  policy  enjoined  upon  us  by  these  rules 
[22  and  23]  is  not  to  permit  plaintiffs  to  be  hampered  by 
procedure  objections  on  the  ground  that  complaint  had  been 
made  to  the  wrong  court,  but,  while  preserving  to  defendants 
all  their  rights  in  the  disposition  of  cases,  nevertheless  to  dis- 
pose of  them  by  having  them  determined  by  that  court  to 
whose  decision  they  are  properly  subject. 

"The  spirit  and  intendment  is  that  the  question  by  what 
tribunal  the  case  should  be  decided  is  to  1  e  determined  when 
the  question  can  be  decided  in  the  full  light  of  all  the  in- 
formation obtainable.  Plaintiff  is  to  have  accorded  to  it  its 
right  to  equitable  relief  in  form  and  method  of  procedure, 
and  the  defendant  is  to  be  given  full  protection  in  the  asser- 
tion of  its  right  in  a  proper  case  to  have  it  submitted  to  a 
jury.  The  question  is  one  to  be  decided  on  its  merits  with 
no  more  regard  to  mere  form  of  procedure  than  is  required, 
and,  whenever  it  appears  that  a  case  brought  in  equity 
should  have  been  brought  at  law,  full  power  is  given  to  make 
the  transfer.  It  is  the  experience  of  every  trial  lawyer  of 
extensive  practice,  as  well  as  of  every  trial  judge,  that  when 
a  case  of  accounting  is  about  to  be  submitted  to  a  jury,  the 
suggestion  is  often  forced  from  the  judge,  or  from  counsel, 
that  the  accounting  should  be  referred  to  someone  well 
equipped  to  render  it.  If  such  should  turn  out  to  be  this 
case,  it  would  be  discovered  that  a  mistake  had  been  made 
in  now  transferring  it. 

"The  conclusion  reached  is  this:  The  defendant  is  within 
its  rights  in  insisting  upon  the  case  being  tried  at  law,  if 
there  is  no  real  ground  for  a  court  of  equity  retaining  juris- 
diction. This  right,  however,  will  remain  in  the  case  to  be 
accorded  to  the  defendant  at  any  stage.  All  that  is  now  de- 


369  TRANSFERRING  TO  LAW  SIDE.      Ch.  37,  §§  844-845 

cidod  is  that  on  the  face  of  the  record  technically  a  court  of 
equity  has  jurisdiction,  and  we  cannot  find  from  the  record 
now  before  us  that  the  averments  which  confer  this  jurisdic- 
tion are  merely  colorable,  nor  can  we  find  at  present  that 
the  case  is  one  which  the  defendant  is  entitled  as  a  matter 
of  right  to  have  tried  at  law. 

"The  motion  to  transfer  is  therefore  dismissed,  with  leave 
to  defendant  to  renew  it  at  any  time." 

§  844.  Rules  22  and  23  Do  not  Change  Mode  of  Beginning  a 
Suit  in  Equity.  The  mode  of  instituting  a  suit  in  equity  by  filing 
the  bill,  etc.,  has  not  been  changed.  Hence  a  motion  to  set 
aside  a  judgment  after  the  term  at  which  it  was  rendered  could 
not  be  treated  as  a  suit  in  equity  and  be  docketed  on  the  equity 
calendar,  and  proceeded  with  in  accordance  with  the  practice 
and  procedure  in  such  cases.  (Wellman  v.  Bethea  (E.  D.  S.  C.), 
213  Fed.  367.) 

§845.  Equity  Suits  not  Maintainable  Where  Legal  Remedy 
Adequate. 

§557,  Jud.  Code  (Formerly  §723,  Rev.  Stats.}.  "Suits  in 
equity  shall  not  be  sustained  in  any  court  of  the  United  States 
in  any  case  where  a  plain,  adequate,  and  complete  remedy  may 
be  had  at  law." 

"The  statute  (above  quoted)  is  no  more  than  a  legislative 
expression  of  pre-existing  familiar  law.  As  far  back  as  Boyce 
v.  Grundy,  3  Pet.  (U.  S  )  213,  7  L.  Ed.  655,  it  was  said,  and 
it  has  been  repeated  in  numerous  cases  since,  including  Will- 
iams v.  Neely,  134  Fed.  10,  69  I  R.  A.  232,  67  C.  C.  A.  171, 
that  such  statute  is  merely  declaratory  of  the  well-recognized 
rule  that  a  suit  in  equity  cannot  be  sustained  where  there  is 
a  plain,  adequate,  and  complete  remedy  at  law.  The  converse 
is  equally  the  settled  law;  that  is,  if  the  plaintiff  has  a  justi- 
fiable cause  and  he  has  no  plain,  adequate,  and  complete 
remedy  at  law,  he  must  have  one  in,  equity.  This  plaintiff 
could  not  maintain  an  action  at  law,  ejectment,  or  other  simi- 
lar statutory  action,  for  the  plaintiff  did  not  have,  at  the  time 

Manual— 24 


§§  846-847,  Ch.  37    MANUAL  OP  FEDERAL  PROCEDURE.  '370 

of  the  filing  of  the  bill,  the  legal  title  coupled  with  the  present 
right  to  possession."  (Continental  Trust  Co.  v.  Tallassee 
Falls  Mfg.  Co.  (M.  D.  Ala.  N.  D.),  222  Fed.  694,  702.) 

§  846.    What  is  an  Adequate  Remedy  at  Law. 

"The  same  answer  has  been  made  to  this  question  by  the 
courts  of  every  jurisdiction,  federal  and  state.  It  is  that  the 
remedy  afforded  by  an  action  at  law  must  be  full,  adequate, 
and  complete.  Mere  existence  of  a  remedy  in  the  sense  of 
the  right  to  bring  an  action  at  law  will  not  of  itself  suffice,  but 
the  remedy  afforded  by  the  action  must  be  of  the  character, 
described."  (Goldschmidt  Thermit  Co.  v.  Primos  Chemical 
Co.,  225  Fed.  772.)  • 

§  847.    Necessity  of  Mixed  Character  of  Remedies  Gives  Equity 
Jurisdiction  as  Legal  Remedy  Alone  is  not  Then  Adequate. 

"The  application  of  the  principle  of  reference  to  the  law 
side  of  the  court  is  also  accompanied  with  another  principle. 
A  case  may  be  of  a  mixed  character  respecting  the  remedies 
called  for,  and  there  may  be  a  commingling  of  the  remedies 
to  which  the  plaintiff  is  entitled,  some  of  which  may  be  purely 
equitable  and  which  can  be  afforded  only  through  chancery 
forms  of  procedure,  and  others,  or  at  least  one  other,  which 
may  be  administered  through  legal  forms. 

"The  principle  then  applicable  is  this:  When  the  right  to  an 
equitable  remedy  exists  in  a  plaintiff  and  he  has  filed  his  biU 
through  and  by  which  a  court  of  equity  has  taken  jurisdiction 
of  his  complaint,  the  court  having  thus  acquired  jurisdiction 
will  proceed  to  a  final  and  full  determination  of  all  his  rights, 
notwithstanding  the  fact  that  this  may  involve  findings  which 
of  themselves  could  have  been  made  in  an  action  at  law. 
Among  these  equitable  remedies,  which  are  recognized  as  the 
right  of  a  litigant  to  have  applied,  is  the  right  to  an  injunc- 
tion, and  in  most  jurisdictions  at  least  to  an  accounting,  where 
the  accounting  is  complex  and  of  a  character  with  which  a 
tribunal,  made  up  of  a  jury,  could  not  be  expected  to  cope. 
The  necessity  for  dlscoyery  also  may  in  itself  confer  equitable 
jurisdiction."  (Goldschmidt  Thermit  Co.  v.  Primos  Chemi- 
cal Co.,  225  Fed.  773.) 


371  TRANSFERRING  TO  LAW  SIDE.      Ch.  37,  §§  848-850 

§848.  Where  Recovery  of  Money  is  Only  Relief  Sought 
Remedy  at  Law  is  Adequate.  Where,  in  a  suit  by  a  bankrupt's 
trustee  to  recover  an  alleged  preference,  the  only  relief  de- 
manded was  the  recovery  of  money  claimed  to  have  been  paid 
to  defendant  by  the  bankrupt  under  circumstances  alleged  to 
constitute  a  voidable  preference,  there  was  a  plain,  adequate, 
and  complete  remedy  at  law;  and  hence  a  bill  in  equity  was  not 
maintainable  under  Judicial  Code,  §  267,  providing  that  suits  in 
equity  shall  not  be  sustained  in  courts  of  the  United  States  in 
any  case  where  a  plain,  adequate,  and  complete  remedy  may  be 
had  at  law.  (First  State  Bank  of  Milliken  v.  Spencer  (8th  Cir.), 
219  Fed.  503,  135  C.  C.  A.  253.) 

§  849.  Where  Account  may  be  Adjusted  by  Jury  Remedy  at 
Law  Adequate.  An  action  of  ejectment  would  not  be  enjoined, 
and  the  litigation  taken  over  by  a  court  of  equity,  on  the  ground 
that,  if  an  accounting  should  be  decreed,  a  court  of  law  would 
be  without  jurisdiction,  where  the  defendant  in  the  ejectment 
action,  seeking  the  injunction,  did  not  concede  that  there  ever 
would  be  an  accounting,  especially  where  the  account  was  short, 
and  no  reason  was  apparent  why  it  could  not  be  adjusted  by  a 
jury.  (Weber  v.  Hertzell  (8th  Cir.),  230  Fed.  965,  145  C.  C.  A. 
159.) 

§  850.  Where  Remedy  at  Law  Does  not  Afford  a  Practical 
and  Efficient  Result  Equity  may  Take  Jurisdiction.  The  district 
court  was  held  to  have  had  jurisdiction  of  an  amended  bill  in 
equity  by  the  holder  of  bonds  issued  by  a  regularly  organized 
state  irrigation  district,  alleging  that  the  directors  of  the  dis- 
trict had  made  and  collected  assessments  for  the  payment  of 
interest  on  the  bonds,  but  had  defaulted  in  interest,  and  had  cast 
a  cloud  on  the  title  to  the  bonds  by  claiming  that  part  of  them 
had  been  issued  without  consideration  or  without  adequate  con- 
sideration, on  the  ground  of  its  independent  equitable  jurisdic- 
tion over  trustees. 


§  851,  Ch.  37  MANUAL  OF  FEDERAL  PROCEDUEE.  372 

In  such  case  the  court  held  that  the  district  court,  though  re- 
quired by  Judicial  Code,  §  267,  to  deny  relief  in  equity  in  any 
case  where  adequate  and  complete  remedy  may  be  had  at  law, 
might  take,  jurisdiction  on  the  ground  that  the  only  available 
action  at  law  to  recover  the  interest  due  on  the  bonds  as  they 
became  due  did  not  afford  a  practical  and  efficient  result. 
(Thompson  v.  Emmett  Irr.  Disk  (9th  Cir.),  227  Fed.  560,  142 
C,  C.  A.  192.) 

§  851.  When  Legal  Remedy  Need  not  be  Exhausted  to  Main- 
tain Creditor's  Bill.  As  a  general  rule,  a  creditor's  bill  to 
set  aside  a  fraudulent  conveyance  can  be  maintained  only  by 
one  who  has  reduced  his  claim  to  judgment  and  had  execution 
issued  thereon  and  returned  unsatisfied,  since  the  debtor  is  en- 
titled to  a  trial  by  jury  as  to  the  correctness  of  plaintiff's  de- 
mand, and  the  remedy  at  law  must  have  been  exhausted  and  the 
existence  of  a  lien  on  the  property  or  interest  therein  by  con- 
tract or  judgment  is  required.  But,  where  it  was  admitted,  by  a  mo- 
tion to  dismiss,  that  plaintiff's  demand  was  valid,  that  the  debtor 
was  wholly  insolvent,  and  had  no  property  anywhere  subject  to 
execution,  and  had  left  the  state  in  which  the  land  fraudulently 
conveyed  was  situated — plaintiff's  failure  to  reduce  his  demand 
to  judgment  did  not  defeat  his  right  to  sue,  since  a  jury  trial  is 
unnecessary  where  the  demand  is  admitted.  The  recovery  of  judg- 
ment is  dispensed  with  where  it  is  improper  or  impossible  or 
would  be  useless.  A  judgment  in  another  state  would  be  no  better 
than  no  judgment  as  a  condition  precedent  to  such  suit,  and, 
moreover,  a  judgment  is  not  a  lien  on  realty  fraudulently  con- 
veyed; it  being  the  filing  of  the  creditor's  bill  which  creates  the 
lien.  (Adler  Goldman  Commission  Co.  v.  Williams,  211  Fed. 
530.) 


373  LEGAL  RELIEF  IN  EQUITABLE  SUIT.      Ch.  38,  §§  8oO-861 


CHAPTER  38. 

ADMINISTEEINO  LEGAL  BELIEF  IN  AN  EQUITABLE  SUIT. 

SEC. 

860.  The  Rule  in  Equity— No.  23. 

861.  Illustrations  —  Specific    Performance    and    Damages  —  Quiet    Title    and 

Possession. 

862.  Court  may  Submit  Incidental  Issues  to  a  Jury. 

863.  Where  Equitable  Jurisdiction  Wholly  Fails,  Equity   will  not  Retain 

Case  to  Determine  Legal  Issues. 

864.  The  Rule  Does  not  Permit  the  Joinder  of  Legal  and  Equitable  Claims 

to  Make  Up  the  Necessary  Jurisdictional  Amount  in  Controversy. 

§860.    The  Rule  in  Equity— No.  23. 

Rule  23.  Matters  Ordinarily  Determinate  at  Law,  When 
Arising  in  Suit  in  Equity  to  be  Disposed  of  Therein.  "If  in 
a  suit  in  equity  a  matter  ordinarily  determinable  at  law  arises, 
such  matter  shall  be  determined  in  that  suit  according  to  the 
principles  applicable,  without  sending  the  case  or  question  to 
the  law  side  of  the  court. 

"It  is  well  settled  that  when  equity  obtains  jurisdiction  to 
administer  one  of  its  peculiar  remedies,  it  will  afford  complete 
relief,  even  though  to  do  so  may  involve  the  giving  of  relief 
which  might  have  been  obtained  at  law."  (Bureau  of  National 
Literature  v.  Sells  (W.  D.  Wash.),  211  Fed.  379,  382.) 

§  861.  Illustrations  —  Specific  Performance  and  Damages — 
Quiet  Title  and  Possession.  In  a  suit  by  the  United  States  for 
the  specific  enforcement  of  an  agreement  by  a  railroad  company 
to  execute  a  stipulation  and  bond  to  protect  the  public  interests 
from  loss  or  injury  by  reason  of  the  construction  and  maintenance 
of  its  road  over  a  national  forest  reservation,  a  court  of  equity  has 
incidental  jurisdiction  to  award  damages  for  injuries  previously 
caused  by  defendant  to  timber  in  the  reservation.  (Chicjiim.  M. 
&  St.  P.  Ry.  Co.  of  Idaho  v.  United  States  (9th  Cir.),  218  Fed.  288, 
134  C.  C.  A.  84.) 


§§  862-863,  Ch.  38    MANUAL  OF  FEDERAL  PROCEDURE,  374 

The  rule  is  that  a  court  of  equity  which  has  rightfully  acquired 
jurisdiction  of  a  cause  will  retain  it  to  do  complete  justice  between 
the  parties.  In  a  suit  by  a  mortgage  trustee  for  a  cancellation  of 
deeds  as  a  cloud  on  the  title  to  the  mortgaged  property,  on  a  find- 
ing that  the  deeds  are  fraudulent  and  that  defendants  are  wrong- 
fully  in  possession,  the  court  will  not  leave  them  in  such  posses- 
sion, but  will  decree  possession  to  complainant,  although  when  the 
suit  was  commenced  it  did  not  have  the  right  of  possession  under 
the  terms  of  the  mortgage.  (Continental  Trust  Co.  v.  Tallassee 
Falls  Mfg.  Co.  (M.  D.  Ala.  N.  D.),  222  Fed.  694,  702.) 

§  862.  Court  may  Submit  Incidental  Issues  to  a  Jury.  In 
Vosburg  v.  Watts  (4th  Cir.),  221  Fed.  402,  408,  137  C.  C.  A.  272, 
the  court  held  that  Rule  23  was  not  intended  to  deprive  a  court 
of  equity  of  the  discretionary  right  to  have  its  "conscience  en- 
lightened" or  its  work  facilitated  by  referring  to  a  jury  some 
question  of  fact  which  is  incidental  and  subordinate  to  the  main 
contention. 

§863.  Where  Equitable  Jurisdiction  Wholly  Fails,  Equity 
will  not  Retain  Case  to  Determine  Legal  Issues. 

"While  this  rule  [Rule  23]  permits  the  decision  of  a  matter 
ordinarily  determinable  at  law  in  a  suit  in  equity  when  there 
remains  jurisdiction  to  grant  equitable  relief  upon  the  cause 
of  action  in  suit,  it  does  not  authorize  such  a  determination 
when  jurisdiction  of  the  cause  in  equity  has  entirely  failed, 
and  section  723  of  the  Revised  Statutes  [§  267,  Jud.  Code] 
grants  to  each  of  the  parties  the  right  to  the  trial  of  the  matter 
by  a  jury  according  to  the  course  of  the  common  law."  (Lin- 
den Inv.  Co.  v.  Honstain  Bros.  Co.  (8th  Cir.),  221  Fed.  178, 
18],  136  C.  C.  A.  121.) 

In  this  case  a  cause  of  action  for  a  mechanic's  lien  failed  because 
there  was  no  showing  as  required  by  state  law  that  the  party  for 
whose  immediate  use  and  benefit  the  building  was  erected  has  some 
estate  or  interest  in  the  land.  The  court  refused  to  allow  the  case 
to  be  retained  for  a  personal  judgment  against  said  party. 


375  LEGAL  RELIEF  IN  EQUITABLE  SUIT.  Ch.  38,  §  864 

§  864.  The  Rule  Does  not  Permit  the  Joinder  of  Legal  and  Equi- 
table Claims  to  Make  Up  the  Necessary  Jurisdictional  Amount  in 
Controversy.  A  plaintiff  having  a  claim  of  equitable  cognizance  of 
less  than  $3,000  for  enforcement  of  a  lien  cannot  invoke  the  juris- 
diction of  a  federal  court  by  joining  in  a  bill  of  equity  seeking  to 
enforce  equitable  claims  separate  and  distinct  legal  causes  of  ac- 
tion for  goods  sold,  and  on  an  account  stated  entirely  disconnected 
from  the  equitable  claim,  sufficient  in  amount  to  make  over  $3,000. 
(Bucyrus  v.  McArthur  (M.  D.  Tenn.),  219  Fed.  266,  271,  272.) 

In  the  case  last  cited  the  court  said : 

Page  271:  "The  Jurisdictional  amount  involved  under  the 
lien  claims  on  the  steam  shovel  is  furthermore  merely  the 
amount  claimed  and  not  the  value  of  the  shovel.  New  Eng- 
land Mortgage  Co.  v.  Gay,  145  U.  S.  123,  130,  36  L.  Ed.  646, 
12  Sup.  Ct.  815.  Obviously,  therefore,  this  court  has  no  juris- 
diction under  these  two  claims  of  an  equitable  nature,  which 
aggregate  only  $2,453.05,  exclusive  of  interest,  unless  in  arriv- 
ing at  the  Jurisdictional  amount  there  can  be  added  one  or 
both  of  the  disconnected  legal  demands  which  have  been  joined 
in  the  bill.  This  is  not  a  case  presenting  the  joinder  of  dif- 
ferent equitable  claims  in  one  bill,  where  the  test  of  the  Juris- 
dictional amount  is  the  aggregate  of  the  claims.  1  Street's 
Fed.  Eq.  Prac.,  §  367,  p.  213,  and  cases  cited ;  and  Lilienthal  v. 
McCormick  (9th  Cir.)  117  Fed.  89,  95,  54  C.  C.  A.  475,  in 
which  the  plaintiff  claimed  a  lien  on  the  same  property,  both 
for  the  advances  and  damages,  each  of  these  claims,  however, 
being  of  an  equitable  nature,  involving  the  enforcement  of  a 
lien.  Nor  is  the  question  affected  by  Equity  Rule  26,  which 
merely  authorizes  the  plaintiff  to  join  in  one  bill  as  many 
causes  of  action  'cognizable  in  equity'  as  he  may  have  against 
the  defendant.  Nor  does  Equity  Rule  23,  when  read  in  con- 
nection with  Equity  Rule  26,  authorize  the  joinder  in  a  bill 
in  equity  of  disconnected  matters  cognizable  only  at  law,  this 
rule  obviously  relating  only  to  aiixiliary  matters  of  legal  cogni- 
zance which  may  arise  in  the  determination  of  an  equity 
cause.  .  .  . 

"These  matters  are  entirely  disconnected,  and  if  the  case 
remained  in  court  so  much  of  the  bill  as  relates  to  the  third 
pr  fourth  claims  would  pearly  have  to  be  transferred  to  the 


§  864,  Ch.  38          MANUAL  OF  FEDERAL  PROCEDURE.  370 

law  side  of  the  court  as  a  separate  suit,  leaving  in  the  equity 
suit  only  the  first  and  second  claims.  In  neither  of  these  two 
suits,  however,  would  the  requisite  jurisdictional  amount  be 
involved. ' ' 

Page  272:  "I  may  add,  as  an  illustration  of  the  complexity 
which  would  be  introduced  if  a  bill  of  this  character  could  be 
maintained,  that  while  the  equitable  portion  of  the  bill  relat- 
ing to  liens  claimed  on  the  steam  shovel  may  well  be  one  of 
such  'a  local  nature'  that  a  subpoena  could  be  directed  to  the 
marshal  of  the  Eastern  District  of  Tennessee,  where  the  de- 
fendant resides,  under  section  54  of  the  Judicial  Code,  or 
that  at  least  the  defendant  could  be  brought  before  the  court 
by  substituted  service  of  process,  under  section  57  of  the  Judi- 
cial Code,  the  legal  claims  set  forth  in  the  bill  appear  to  be 
.  of  a  purely  transitory  character.  And  since  the  defendant 
does  not  reside  within  this  district  and  does  not  appear  to  be 
within  the  district,  there  is  no  provision  of  law  by  which  he 
r  '  could  be  summoned  to  appear  and  make  defense  to  so  much 
of  the  bill  as  relates  to  these  transitory  causes  of  action.  The 
marshal  of  this  district  in  which  the  suit  is  brought  would, 
of  course,  be  powerless  to  serve  a  subpoena  upon  the  defend- 
ant outside  of  this  district;  while,  to  this  extent,  the  action 
being  of  a  transitory  character,  there  would  be  no  authority, 
statutory  or  otherwise,  for  the  service  of  a  writ  of  subpoena 
by  the  marshal  of  the  Eastern  district  or  for  substituted  ser- 
vice in  that  district." 


377  MOTION  TO  DISMISS  LN  POINT  OF  LAW.      Ch.  39,  §§  880-881 


CHAPTER  39. 

MOTION  TO  DISMISS  IN  POINT  OF  LAW. 

SEO. 

880.  Motion  to  Dismiss  Under  Equity  Rule  29. 

881.  Applies  to  Bankruptcy  Cases. 

882.  Admits  Allegations  of  Bill  Well  Pleaded. 

883.  A  Motion  to  Dismiss  is  in  Effect  a  Demurrer,  Evidence  not  to  be  Con- 

sidered. 

884.  Same — Defense  of  Another  Suit  Pending  cannot  be  Raised  on  Motion  to 

Dismiss. 

885.  Same — Defense   of   Special   Statute   of   Limitations   not   Allowed    on   a 

Motion  to  Dismiss- 

886.  Motion  to  Dismiss — Nonjoinder. 

887.  Defense  in  Bar  Set  Up  on  Motion  to  Dismiss. 

888.  Motion  to  Dismiss  on  Ground  of  Laches. 

889.  Judicial  Notice  in  Aider  of  Motion  to  Dismiss. 

890.  Motion  to  Dismiss  on  Plaintiff's  Answers  to  Interrogatories. 

891.  Illustration  of  Motion  to  Dismiss. 

§  880.    Motion  to  Dismiss  Under  Equity  Rule  29. 

Part  Equity  Rule  29.  "Every  defense  in  point  of  law  aris- 
ing upon  the  face  of  the  bill,  whether  for  misjoinder,  non- 
joinder, or  insufficiency  of  fact  to  constitute  a  valid  cause  of 
action  in  equity,  which  might  heretofore  have  been  made  by 
demurrer,  or  plea,  shall  be  made  by  motion  to  dismiss  or  in 
the  answer.  ...  If  the  defendant  move  to  dismiss  the  bill 
or  any  part  thereof,  the  motion  may  be  set  down  for  hearing 
by  either  party  upon  five  days'  notice,  and,  if  it  be  denied, 
answer  shall  be  filed  within  five  days  thereafter  or  a  decree 
pro  confesso  entered."  (Quoted  in  full  §900,  post.) 

§  881.  Applies  to  Bankruptcy  Cases.  A  court  of  bankruptcy 
is  an  equity  court,  and  subject  to  new  Equity  Rule  29,  abolishing 
demurrers  in  equity  suits.  (Pollack  v.  Meyer  Bros.  Drug  Co.  (8th 
Cir.),  233  Fed.  861,  147  C.  C.  A.  535.) 


§§  882-883,  Ch.  39    MANUAL  OP  FEDERAL  PROCEDURE.  378 

§  882.  Admits  Allegations  of  Bill  Well  Pleaded.  A  motion  to 
dismiss  a  bill  in  equity  admits  all  the  allegations  of  the  bill  which 
are  well  pleaded.  (Johnson  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (W.  D. 
Wash.  N.  D.),  224  Fed.  196,  200;  Fordham  v.  Hicks  (S.  D.  Ga. 
W.  D.),  224  Fed.  810,  811.) 

"On  motion  to  dismiss  a  bill,  its  averments  must  be  treated 
as  true,  the  same  as  in  case  of  a  demurrer."  (Lowenthal  v. 
Georgia  Coast  &  R.  R.  Co.,  233  Fed.  1010.) 

§  883.  A  Mot:  on  to  Dismiss  is  in  Effect  a  Demurrer,  Evidence 
not  to  be  Considered.  A  demurrer,  filed  prior  to  February  1, 
1913,  was  sustained  subsequent  to  that  date.  Where  the  record 
did  not  show  when  it  was  submitted,  it  would  be  assumed,  on  ap- 
peal, either  that  it  was  submitted  before  February  1,  1913,  or  that 
the  court  treated  it  as  a  motion  to  dismiss.  (Weber  v.  Hertzell 
(8th  Cir.),  230  Fed.  965,  145  C.  C.  A.  159.) 

"The  motions  to  dismiss  were  filed  under  Rule  29  of  those 
in  force  February  1,  1913,  and  have  the  force  and  effect  of 
demurrers.  In  the  consideration  of  such  motions  the  court 
cannot  consider  affidavits  filed  by  defendants  on  disputed 
questions  of  fact.  This  additional  difficulty  is  met  with  at  the 
outset  that,  while  many  affidavits  were  introduced  and  are  in 
the  record  offered  by  both  the  complainant  and  defendants, 
they  were  offered  on  the  application  for  a  temporary  injunc- 
tion and  not  on  the  motion  to  dismiss. 

"Inasmuch  as  it  seems  desirable  that  the  court  first  pass  on 
the  motions  to  dismiss,  the  court,  in  considering  them,  can  only 
consider  the  third  amended  and  supplemental  bill,  including, 
however,  the  exhibits  incorporated  therein  and  such  additional 
matters  as  are  conceded  by  the  complainant."  (Central  Trust 
Co.  of  New  York  v.  Denver  &  R.  G.  R.  Co.  (8th  Cir.),  219  Fed. 
110,  113,  135  C.  C.  A.  12.) 

In  considering  the  motion  the  pleadings  alone  are  involved. 
(Hosier  v.  Ireland,  219  Fed.  490,  491,  135  C.  C.  A.  201.) 

The  proposition  must  be  absolutely  clear  that  taking  the  allega- 
tions of  the  bill  to  be  true,  it  must  be  dismissed  at  the  hearing. 
(Ralston  Steel  Car  Co.  v.  National  Dump  Car  Co.  (D.  Maine), 
222  Fed.  590.) 


379  MOTION  TO  DISMISS  IN  POINT  OP  LAW.      Ch.  39,  §§  884-885 

$884.    Same — Defense  of  Another  Stdt  Pending  cannot  be 
Raised  on  Motion  to  Dismiss. 

"Under  the  old  rules  these  facts  would  be  raised  by  a  plea 
in  abatement,  and  to  sustain  it  would  require  evidence.  Spe- 
cial pleas  of  abatement  are  now  abolished  by  Equity  Rule  29, 
but  may  be  set  up  in  the  answer.  In  any  event  the  plea  would 
be  bad.  This  court  had  that  question  before  it  a  short  time 
ago  in  Falls  City  Construction  Co.  v.  Monroe  County,  208 
Fed.  482,  and  it  is  unnecessary  to  repeat  the  reasons  why  such 
a  plea  is  not  good."  (Adler  &  Goldman  Commission  Co.  v. 
Williams,  211  Fed.  530,  532.) 

§  885.    Same — Defense  of  Special  Statute  of  Limitations  not 
Allowed  on  a  Motion  to  Dismiss. 

"It  is  to  be  noted  that,  while  this  rule  requires  that  every 
defense  heretofore  presentable  by  plea  in  bar  or  abatement 
shall  be  made  by  answer,  it  is  not  every  defense  in  point  of 
law  arising  upon  the  face  of  the  bill  that  heretofore  was  avail- 
able on  demurrer  that  can  be  disposed  of  on  motion  without 
answer.  The  proposed  defense  could  have  been  pleaded  in 
bar  of  the  complainant's  action  and  disposed  of  in  advance 
of  the  principal  case,  at  the  discretion  of  the  court.  It  can- 
not, however,  be  disposed  of  on  motion,  without  answer,  be- 
cause it  does  not  involve  misjoinder  or  nonjoinder,  and  is  not 
based  on  an  insufficiency  of  fact  to  constitute  a  valid  cause  of 
action  in  equity — the  only  grounds  upon  which  a  bill  of  com- 
plaint may  be  dismissed  without  answer.  The  bill  alleges 
every  fact  necessary  to  constitute  a  valid  cause  of  action  in 
equity,  as  well  as  the  reasons  for  the  lapse  of  time  in  bringing 
suit.  In  such  a  situation,  a  statute  (no  longer  existing)  which, 
while  in  force,  did  not  impair  the  cause  of  action  to  which  it 
related,  but  only  limited  the  time  within  which  an  action  to 
enforce  it  could  be  brought,  should  be  pleaded,  with  pertinent 
statements  of  fact  making  it  applicable  to  the  case  made  out 
by  the  bill. 

"The  motion  to  dismiss  is  denied."  (Tilden  v.  Barber 
(D.  N.  J.),  227  Fed.  1010,  1011.) 


§§  836-887,  Ch.  39     MANUAL  OP  FEDERAL  PROCEDURE.  380 

§  886.    Motion  to  Dismiss — Nonjoinder. 

"The  defendants  have  filed  a  motion  to  dismiss  the  suit  on 
the  ground  of  nonjoinder  of  parties,  because  the  bill  showa 
that'  Rogers  was  jointly  interested  with  Viets  and  Bancroft 
in  the  agreement  of  May  5,  1913,  for  the  purchase  and  sale  of 
the  timber  land.  Viets,  Bancroft,  and  Rogers  are  named  as 
the  parties  of  the  one  part  to  said  agreement,  while  the  Maine 
-  Land  &  Lumber  Company,  one  of  the  defendants,  is  named 
as  the  other  party  to  said  agreement.  Defendants  also  moved 
to  dismiss  the  complaint  because  Rogers  still  has  a  united  in- 
terest with  the  other  two  in  the  subject  matter  of  this  suit, 
and  that  therefore  it  was  necessary  and  indispensable  that 
Rogers  be  made  a  party  plaintiff  to  this  cause,  and  as  he  is 
now,  and  was  at  the  time  this  suit  was  brought  a  citizen  of 
Connecticut,  the  necessary  diversity  of  citizenship  required  to 
give  this  court  jurisdiction  does  not  exist. 

"In  addition  to  this  reason  for  dismissal,  the  defendants, 
in  their  motion,  have  set  up  other  claims  which  need  not  be 
noticed  here,  as  the  motion  to  dismiss  must  be  granted  for 
nonjoinder  of  parties. 

"In  case  the  plaintiffs  bring  a  suit  in  the  state  court,  based 
upon  a  bill  of  complaint  like  that  set  out  in  this  action,  the 
defendants  may  then  raise,  by  demurrer  or  otherwise,  the  other 
questions  which  they  have  herein  presented  in  their  motion 
to  dismiss,  at  which  time  such  questions  may  be  heard  and 
determined."  (State  of  Maine  Lumber  Co.  v.  King-field  Co. 
(Conn.),  218  Fed.  902,  904.) 

"Where  a  motion  to  dismiss  is  made  for  a  defect  in  the 
pleadings,  and  a  hearing  is  had  in  advance  of  the  trial,  the 
motion  must  be  considered  on  the  complaint  alone ;  and  hence, 
where  defendant  answered,  alleging  nonjoinder  of.  an  indis- 
pensable party,  and  it  was  necessary  to  invoke  the  record  in 
another  case  to  show  the  necessity  for  joining  such  party,  a 
motion  to  dismiss  would  not  be  heard  in  advance  of  the  trial, 
but  the  issue  would  be  heard  and  determined  before  the  taking 
of  testimony  on  the  main  issue."  (Bogert  v.  Southern  Pac. 
Co.  (E.  D.  N.  Y.),  211  Fed.  776.) 

§  887.    Defense  in  Bar  Set  Up  on  Motion  to  Dismiss.    Under 
Rule  29,  in  a  suit  for  infringement,  the  defense  that  defendant  is 


381  MOTION  TO  DISMISS  IN  POINT  OF  LAW.       Ch.  39,  §§  888-890 

a  contractor  with  the  government  for  the  articles  infringing  a 
patent  and  for  that  reason  is  protected  by  Act  June  25,  1910, 
c.  423,  may  be  set  up  by  motion  to  dismiss.  (Marconi  Wireless 
Telegraph  Co.  v.  Simon  (S.  D.  N.  Y.),  227  Fed.  906,  908.) 

§  888.  Motion  to  Dismiss  on  Ground  of  Laches.  Under  Rules 
25  and-29,  when  laches  is  apparent  on  the  face  of  the  bill,  it  may 
be  taken  advantage  of  by  motion  to  dismiss,  which  is  equivalent 
to  a  demurrer.  (Alexander  v.  Fidelity  Trust  Co.  (E.  D.  Pa.), 
215  Fed.  791.) 

In  the  case  last  cited  the  court  said: 

"It  is  clear  that  these  rules  change  only  the  manner  of  rais- 
ing such  questions,  and  neither  the  questions  themselves  nor 
the  equitable  principles  by  which  they  are  to  be  determined." 

§  889.  Judicial  Notice  in  Aider  of  Motion  to  Dismiss.  De- 
murrers under  the  old  practice  and  motions  to  dismiss  under  the 
new  can  only  be  sustained  in  matters  of  judicial  notice  in  a  very 
clear  case.  (United  States  v.  Mackey  (8th  Cir.),  216  Fed.  126, 
132  C.  C.  A.  370.) 

§  890.  Motion  to  Dismiss  on  Plaintiff's  Answers  to  Interroga- 
tories. 

"The  procedure  under  Equity  Rule  58,  as  followed  in  this 
case,  was  sanctioned  by  this  court  in  Bronk  v.  Charles  H. 
Scott  Co.,  211  Fed.  338,  128  C.  C.  A.  17,  where  it  said: 

"  'If  the  decree  cannot  be  sustained  by  an  application  of 
the  law  to  the  facts  admitted  by  appellant  in  her  bill  and  in 
her  answers  to  appellee's  interrogatories,  the  cause  must  be 
remanded  for  trial  in  due  course.  Undoubtedly  the  purpose 
of  authorizing  interrogatories  was  to  enable  the  court  to  make 
a  summary  disposition  of  a  cause  by  applying  the  law  to  an 
admitted  state  of  facts;  but,  when  the  facts  are  not  a-lmitted, 
neither  that  rule  nor  any  other  warrants  a  summary  disposi- 
tion on  affidavits  or  other  untested  showings  by  the  party 
moving  for  the  summary  disposition,  in  lieu  of  proofs  duly 
taken  with  proper  opportunity  for  the  adversary  to  cross- 
examine.' 


§  891,  Cll.  39  MANUAL  OF  FEDERAL  PROCEDURE.  382 

"In  the  instant  case  no  question  arises  of  the  validity  of 
the  patent  in  suit.  .  .  .  The  defense  of  noninfringement  is 
the  only  one  which  this  record  raises.  The  bill  broadly  and 
aptly  charges  infringement,  and  is  upon  its  face  entirely  suffi- 
cient. To  dismiss  it  on  motion  would  be  unwarranted,  unless/ 
from  the  answers  to  the  interrogatories  it  so  clearly  appears 
that  the  defendant  did  not  infringe  the  patent  in  suit  that  the 
court  can  say  that  under  no  admissible  evidence  whiefc-might 
by  any  possibility  exist  can  the  conclusion  of  noninfringement 
be  avoided."  (Asbestos  Shingle,  Slate  &  Sheathing  Co.  v.  As- 
bestos Shingle  Co.  (7th  Cir.),  239  Fed.  539,  541,  152  C.  C.  A. 
417.) 

§  891.    Illustration  of  Motion  to  Dismiss. 

"Defendant  has  moved  the  court  to  dismiss  the  bill,  upon 
the  ground  that  the  facts  stated  therein  are  insufficient  to  con- 
stitute a  valid  cause  of  action  in  equity,  in  that  the  release 
signed  by  plaintiff  relates  to  personal  injuries  and  a  satisfac- 
tion of  the  damage  and  claim  for  personal  injuries  occurring 
March  5,  1910,  and  that  plaintiff's  cause  of  action,  if  any,  for 
injuries  received  on  that  date,  accrued  at  that  time,  and  that 
the  law  action  commenced  by  plaintiff  is  barred  by  section  159 
of  Kemington  &  Ballinger's  Code  of  Washington,  which  pro- 
vides that  an  action  for  an  injury  by  one  person  of  another 
must  be  commenced  within  three  years  from  the  date  of  the 
accrual  o£  the  cause  of  action."  (Johnson  v.  Chicago,  M.  & 
St.  P.  Ky.  Co.  (W.  D.  Wash.  N.  D.),  224  Fed.  196,  197.) 

FORM— MOTION  TO  DISMISS. 

In  the  District  Court  of  the  United  States,  in  and  for  the  Southern  Dis- 
trict of  California,  Southern  Division. 

In  Equity — No. . 

,  Corporation,  -\ 

Plaintiff, 

y 

>  MOTION  TO  DISMISS. 

• >,  Incorporated,  a  Corporation,  I 

Defendant.  I 

Now  comes  ,  Incorporated,  a  corporation,  the  defendant  in  the  above- 
entitled  action,  and  moves  the  court  to  dismiss  this  action  and  that  it 
takes  its  costs  in  this  suit  incurred  for  .the  following  reasons: 


383  MOTION  TO  DISMISS  IN  POINT  OP  LAW.  Ch.  39,  §  891 

L 

Because  ft  appears  in  the  complaint  filed  in  this  cause  that  a  certain 

indispensable  party  defendant,  to  wit, ,  the  lessor  in  the  lease  described, 

is  a  citizen  of  the  same  state  as  the  state  in  which  the  plaintiff  is  a  citizen, 
and  therefore  no  diversity  of  citizenship  exists  as  alleged  and  upon  which 
basis  the  court  is  alleged  to  have  jurisdiction. 

n. 

That  there  is  insufficiency  of  fact  to  constitute  a  valid  cause  of  action: 
in  equity  against  the  defendant. 

m. 

That  there  is  a  nonjoinder  of  an  indispensable  party,  to  wit,  ,  the 

lessor  in  the  lease  set  out  in  the  complaint. 

,  Solicitor  for  Defendant. 

— — ,  Of  Counsel. 

FOBM— DECKLE  DISMISSING. 

In  the  District  Court  of  the  United  States,  in  and  for  the  Southern  Dis- 
trict of  California,  Southern  Division. 

In  Equity — No.  — — . 

— — ,  Corporation,  ^ 

Plaintiff, 
v.  I   DECREE  DISMISSING  STJIT  ON  DEFEND- 

,  Incorporated,  a  Corporation,  f  ANT'S  MOTI°N  TO  DlSM'SS' 

Defendant. ) 

This  cause  came  on  to  be  heard  at  this  term,  and  was  argued  by  counsel; 

and  thereupon,  upon  consideration  thereof,  on  the  -    -  day  of  ,  1917, 

the  Honorable  ,  District  Judge,  announced  his  decision,  and  caused  a 

minute  entry  thereof  to  be  made  as  follows: 

"This  cause  having  heretofore  been  submitted  to  the  court  for  its  con- 
sideration and  decision  on  defendant's  motion  to  dismiss  the  bill  of  com- 
plaint; the  court,  having  duly  considered  the  same,  and  being  fully  advised 
in  the  premises,  now  announces  its  conclusions  thereon,  and  it  is  accord- 
ingly ordered  that  said  motion  of  defendant  to  dismiss  the  bill  of  complaint 
be,  and  same  hereby  is  granted." 

It  is,  therefore,  ordered,  adjudged  and  decreed  as  follows,  viz: 

That  defendant's  motion  to  dismiss  be  sustained,  and  that  thin  cause 
be  and  hereby  is  dismissed,  and  that  defendant  recover  from  plaintiff  its 
costs  herein  expended. 

-      ,  District  Judge. 

O.  K.  as  to  form. 

,  Solicitors  for  Plaintiffs. 


§§  900-9U1,  Cll.  40      MANUAL  OF  FEDERAL  PROCEDURE.  384 


CHAPTER  40. 


SEC. 

900.  The  Equity  Rule— No.  29. 

901.  Separate  Hearing  of  Answer  as  a  Plea. 

902.  Answer  as  a  Plea  may  be  Disposed  of  Either  as  an  Issue  of  Law  or  of 

Mixed  Law  and  Fact. 

903.  Answer  as  a  Plea  Should  also  Show  Defendant's  Other  Defenses — Should 

Set  Out  Defendant's  Whole  Defense. 

904.  On  Sustaining  of  Plea  Court  Will  Dismiss  the  Bill. 

§900.    The  Equity  Rule— No.  29. 

Equity  Rule  29.  "(Defenses  —  How  Presented.)  Demur- 
rers and  pleas  are  abolished.  Every  defense  in  point  of  law 
arising  upon  the  face  of  the  bill,  whether  for  misjoinder,  non- 
joinder, or  insufficiency  of  fact  to  constitute  a  valid  cause  of 
action  in  equity,  which  might  heretofore  have  been  made  by 
demurrer  or  plea,  shall  be  made  by  motion  to  dismiss  or  in  the 
answer;  and  every  such  point  of  law  going  to  the  whole  or  a 
material  part  of  the  cause  or  causes  of  action  stated  in  the 
bill  may  be  called  up  and  disposed  of  before  final  hearing  at 
the  discretion  of  the  court.  Every  defense  heretofore  present- 
able by  plea  in  bar  or  abatement  shall  be  made  in  the  answer 
and  may  be  separately  heard  and  disposed  of  before  the  trial 
of  the  principal  case  in  the  discretion  of  the  court.  If  the 
defendant  move  to  dismiss  the  bill  or  any  part  thereof,  the 
motion  may  be  set  down  for  hearing  by  either  party  upon  five 
days'  notice,  and,  if  it  be  denied,  answer  shall  be  filed  within 
five  days  thereafter  or  a  decree  pro  confesso  entered."  (3 
TJ.  S.  Comp.  Stats.  1916,  §  1536,  p.  2508;  Foster's  Federal 
Practice,  5th  ed.,  pp.  455,  458,  485,  508,  562,  623,  630,  765,  786, 
836,  1118,  1174;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  128, 
129,  200,  204,  261,  296,  301,  310,  311,  362,  375,  386,  394,  395, 
398,  399,  402,  404,  405,  407,  411,  412,  414,  416,  418,  419,  421, 
426,  431,  442,  452.) 

§901.  Separate  Hearing  of  Answer  as  a  Plea.  Under  Rule 
29,  motion  to  dismiss  will  be  denied  where  the  case  is  on  the  calen- 
dar, and  defendant  invokes  the  record  of  other  cases  in  such  a  way 


385  ANSWER  AS  A  PLEA.  Ch.  40,  §  902 

that  they  must  be  treated  as  proofs.  But  upon  the  call  of  the 
case  the  plea  will  be  heard  upon  such  record  as  may  be  offered 
before  taking  testimony  in  support  of  the  main  issue.  (Bogert  v. 
Southern  Pac.  Co.  (E.  D.  N.  Y.),  211  Fed.  776.) 

§  902.    Answer  as  a  Plea  may  be  Disposed  of  Either  as  an  Issue 
of  Law  or  of  Mixed  Law  and  Fact. 

"Demurrers  are  now  abolished  by  Rule  29.  The  question 
of  whether  the  bill  on  its  face  avers  such  facts  as  '  constitute  a 
valid  cause  of  action  in  equity'  can  now  be  raised  by  a  'motion 
to  dismiss'  the  bill,  or  it  may  be  raised  in  the  answer.  Under 
Rule  29,  when  raised  by  motion  to  dismiss,  the  motion  may  be 
set  down  for  hearing  upon  five  days'  notice.  "When  raised  by 
answer,  it  may  be  disposed  of  by  the  court  as  a  matter  of 
pleading,  or  a  trial  question,  in  the  discretion  of  the  court 
In  this  case  the  question  has  been  raised  by  answer. 

"It  has  thus  been  taken  out  of  the  domain  of  questions  of 
pleading  and  has  been  transferred  to  the  domain  of  trial  ques- 
tions. This  docs  not  preclude  the  respondents  at  the  trial  of 
the  case  from  raising  the  question  at  the  outset  as  if  it  were 
a  question  of  pleading,  for  the  reason  that  it  would  be  idle 
to  go  on  with  the  trial  of  the  case  when  the  result  of  it  could 
be  determined  at  the  outset. 

"There  is  a  distinction,  however,  between  disposing  of  the 
question  as  a  trial  question  and  disposing  of  it  as  a  question 
of  pleading  either  on  a  demurrer,  as  under  the  old  practice, 
or  on  a  motion  to  dismiss,  under  the  present  practice.  The 
distinction  is  this :  Cases  disposed  of  upon  demurrers  in  form 
must  necessarily  be  decided  according  to  the  record  as  it  then 
stands,  and  the  same  thing  is  true  of  a  motion  to  dismiss  under 
the  present  rules.  When  the  question  is  raised  as  a  trial  ques- 
tion, then,  as  on  all  questions  of  like  character  raised  in  the 
trial  of  the  case,  the  plaintiff  may  move  to  amend  his  record, 
and  if  the  amendment  is  allowed,  and  no  surprise  is  pleaded, 
the  trial  proceeds  upon  its  trial  merits  without  regard  to  the 
old  state  of  pleadings.  The  distinction  referred  to,  therefore, 
involves  a  right  of  the  complainants,  which  is,  or  at  least  may 
be,  of  very  great  practical  value."  (Alexander  v.  Fidelity 
Trust  Co.  (E.  D.  Pa.),  214  Fed.  495,  497.) 

Manual — 25 


§  903,  Ch.  40    _        MANUAL  OP  FEDERAL  PROCEDURE.  386 

On  motion  for  a  preliminary  injunction  which  was  granted, 
questions  of  law  as  to  exoneration  and  a  principle  of  governmental 
policy  were  raised.  The  court  in  discussing  future  disposition  of 
the  case  in  the  pleadings  said,  page  299: 

"As  demurrers  in  equity  have  been  abolished,  the  real  ques- 
tion intended  to  be  raised  by  the  defendants  can  be  raised  only 
under  Rule  29.  This  must  be  either  on  motion  called  up  and 
disposed  of  in  the  discretion  of  court,  or  on  motion  set  down 
for  hearing  upon  five  days'  notice.  If  counsel  representing 
all  the  parties  are  in  accord  upon  the  suggestion  that  the  case 
be  finally  disposed  of  as  if  upon  demurrer,  they  may  by  stipu- 
lation, or  by  conforming  strictly  with  the  requirements  of 
Rule  29,  put  the  case  in  formal  shape  to  be  finally  ruled." 
(Southwestern  Surety  Ins.  Co.  v.  Wells. (E.  D.  Pa.),  217  Fed. 
294.) 

§  903.  Answer  as  a  Plea  Should  Also  Show  Defendant's  Other 
Defenses — Should  Set  Out  Defendant's  Whole  Defense. 

"On  motion  by  complainants  under  Equity  Rule  29  for  de- 
cision of  points  of  law  in  respect  to  the  cause  or  causes  o.f 
action  stated  in  the  bill,  raised  by  portions  of  the  answer  of 
defendants  or  some  of  them.  Motion  granted."  (Boyd  v. 
New  York  &  H.  R.  Co.  (S.  D.  N.  Y.),  220  Fed.  174,  175.) 

Page  178:  "The  pleadings  are  under  the  equity  rules  of 
February  1,  1913,  and  each  answer  contains  matter  tendering 
issues  of  law.  Complainants  have  thereupon  made  this  motion. 

"The  matter  specified  in  the  notice  of  motion  may  in  part 
be  described  with  accuracy,  in  terms  of  the  old  practice.  The 
Central  has  demurred  generally  to  the  whole  bill. 

"All  the  defendants  have  asserted  by  answer  that  private 
complainants  cannot  in  this  form  of  action  avail  themselves/ 
of  the  prohibitions  of  the  Sherman  Act,  and  all  assert  that  the 
consolidation  of  the  Harlem  and  Central  is  not  within  the 
purview  of  the  statute.  With  some  hesitation  I  think  these 
contentions  would  formerly  have  been  raised  by  motion  to 
expunge. 

"These  probable  equivalents  are  referred  to  only  as  aids  in 
passing  from  old  to  new ;  for,  if  the  modern  practice  is  worthy 
of  acceptance,  its  excellence  will  not  arise  from  doing  only 


387  ANSWER  AS  A  PLKA.  Ch.  40,  §  (Jl)3 

the  old  things  under  new  names.  The  new  method  must  show 
itself  a  better,  quicker,  more  far-reaching  instrument  for  as- 
certaining truth;  otherwise  it  were  folly  to  trouble  ourselves 
with  new  names. 

"There  is  nothing  novel  in  embodying  and  presenting  legal 
propositions  in  an  answer,  and  the  points  thus  presented  may 
be  every  degree  of  importance. 

"What  is  new  is  the  obligation  on  defendant  to  show  all 
his  propositions  at  once,  whether  of  fact  or  law,  and  let  oppo- 
nent and  court  consider  whether,  in  view  of  the  facts  alleged, 
any  of  the  legal  theories  propounded  can  profitably  be  con- 
sidered before  testimony  taken;  or  by  taking  merely  such  evi- 
dence as  has  heretofore  been  often  adduced  in  support  of  a 
plea. 

"Evidently  this  casts  a  burden  upon  judicial  discretion 
hitherto  unknown.  Many  a  judge  has  heard  in  succession  a 
demurrer,  a  plea  or  two,  and  several  motions  before  getting 
to  an  answer,  and  never  seen,  nor  thought  he  had  a  right  to 
see,  the  whole  defense  at  a  glance.  Whether  the  panorama 
now  afforded  is  real  reform  depends  almost  altogether  on  how 
sympathetically  and  skillfully  the  new  procedure  is  adminis- 
tered. That  early  efforts  will  sometimes  be  mistakes  is  to  be 
expected. 

"This  case  affords  opportunity  and  imposes  necessity  of 
considering  at  least  two  points,  which  are  of  importance  to 
the  scheme  of  procedure,  and  not  merely  in  this  litigation : 

(1)  Where  an  answer  asserts  that  the  bill  states  no  case,  can 
any  fact  allegations  of  defendant's  pleading  be  considered? 

(2)  When  defendants  raise  legal  propositions  going  to  less 
than  complainant's  whole  case,  what  test  can  be  suggested  to 
guide  the  court  in  deciding  whether  to  consider  or  decline  the 
points  in  advance  of  final  hearing? 

"On  the  first  point,  it  seems  to  me  clear  that,  when  defend- 
ant alleges  that  complainant  shows  no  case  at  all,  he  cannot 
complain  if  the  court  considers  any  admission  or  allegation  of 
the  answer  which  explains  or  enlarges  (but  does  not  contra- 
dict) the  bill  of  complaint. 

"One  who  'demurs  generally'  nowadays  must  be  understood 
to  do  so,  not  only  on  what  complainant  shows,  but  also  after 
having  had  his  own  conscience  purged.  Thus  only  is  avoided 
the  old  and  bad  habit  of  trying  everything  else  before  stating 
facts. 


§  904,  Ch.  40  MANUAL  OF  FEDERAL   PROCEDURE.  388 

"Similarly,  where  one  defendant  demurs  after  stating  his 
own  actions  or  position,  and  other  defendants  deny  knowledge 
regarding  the  first  defendant,  any  relief  to  which  complainant 
is  entitled  on  the  statement  of  No.  1  will  not  be  stayed  by  His 
fellow's  lack  of  knowledge. 

"For  these  reasons  I  have  above  recited  the  Central's  admis- 
sions as  to  consolidation,  and  feel  free  to  act  on  them,  notwith- 
standing the  ignorance  of  the  other  answers. 

"On  the  second  query,  I  am  of  opinion  that  no  legal  point 
(going  to  less  than  the  whole  case)  should  be  decided  in  ad- 
vance of  final  hearing,  unless  such  decision  will  add  to  or 
eliminate  from  the  case  a  clearly  defined  and  easily  stated 
mass  of  testimony,  the  presence  or  absence  of  which  will  not 
change  or  affect  the  method  of  presenting  the  other  aspects  of 
the  litigation. 

"Applying  this  to  the  case  at  bar,  it  seems  advisable  now 
to  pass  upon  the  applicability  of  the  Sherman  Act,  because 
the  propositions  of  complainant  evidently  require  much  expen- 
sive fact  evidence  for  ultimate  solution,  which  (if  defendants 
are  right)  it  will  be  useless  to  prepare  and  present."  (Boyd 
v.  New  York  &  H.  R.  Co.  (S.  D.  N.  Y.),  220  Fed.  174,  178,  179, 
180.) 

§  904.     On  Sustaining  of  Plea  Court  will  Dismiss  the  Bill. 

"The  district  court  sustained  the  pleas  to  the  jurisdiction  as 
to  the  cause  of  action  based  on  trademark  and  unfair  competi- 
tion, but  allowed  a  replication  to  be  filed  to  the  plea  in  respect 
to  the  cause  of  action  on  infringement,  This  was  the  proper 
practice  under  old  Rule  33,  then  in  force.  The  issue  on  the 
plea  was  tried  and  the  court  sustained  the  plea  and  dismissed 
the  bill.  This  is  the  proper  practice  under  new  'Rule  29." 
(W.  S.  Tyler  Co.  v.  Ludlow-Saylor  Wire  Co.  (2d  Cir.),  212 
Fed.  156,  129  C.  C.  A.  12.) 


389  TO  OBTAIN  BETTEB  STATEMENT.      Ch.  41,  §§  920-923 


CHAPTER  41. 

TO  OBTAIN  FURTHER  AND  BETTER  STATEMENT  OR  PARTICULARS. 

SEO. 

920.  Definiteness  and  Certainty — Rule  20. 

921.  Bill  of  Particulars. 

922.  Is  a  Matter  of  Discretion. 

923.  Cannot  be  Used  to  Obtain  Information  of  Facts  Which  are  Matters  of 

Expert  Testimony. 

924.  Can    be    Used    to    Narrow    the    Issues    by    Requiring    Defendant    to 

Particularize. 

§  920.    Definiteness  and  Certainty— Rule  20. 

Equity  Ride  20.  "  (Further  and  particular  statement  in 
pleading  may  be  required.)  A  further  and  better  statement 
of  the  nature  of  the  claim  or  defense,  or  further  and  better 
particulars  of  any  matter  stated  in  any  pleading,  may  in  any 
case  be  ordered,  upon  such  terms,  as  to  costs  and  otherwise, 
as  may  be  just."  (3  U.'  S.  Comp.  Stats.  1916,  §  1536,  p.  2502 ; 
Foster's  Federal  Practice,  5th  ed.,  pp.  485,  788;  Simldns' 
Federal  Equity  Suit,  3d  ed.,  pp.  275,  355,  359,  436,  454.) 

§921.  Bill  of  Particulars.  Where  defendants  believe  that 
they  cannot  safely  proceed  to  trial  without  a  more  complete 
statement  of  complainants'  alleged  grievances,  a  bill  of  particu- 
lars may  be  required  as  provided  by  Equity  Rule  29.  (Williams 
v.  Pope  (W.  D.  N.  Y.),  215  Fed.  1000.) 

§  922.    Is  a  Matter  of  Discretion. 

"A  rule  for  a  bill  of  particulars  is  an  appeal  to  the  discre- 
tion of  the  court,  and  this  appeal  will  be  granted  or  refused 
according  to  the  circumstances."  (Gimbel  Bros.  v.  Adams 
Express  Co.  (E.  D.  Pa.),  217  Fed.  318.) 

§  923.  Cannot  be  Used  to  Obtain  Information  of  Facts  Which 
are  Matters  of  Expert  Testimony.  Plaintiff  and  defendant  each 
entered  motions  for  further  particulars  of  answer  and  bill.  The 
court  said: 


§  924,  Ch.  41      MANUAL  OP  FEDERAL  PROCEDURE.  390 

"The  motion  of  the  plaintiff  is  likewise  overruled.  Where 
the  answer  sets  up  the  existence  of  some  concrete  thing  which 
may  be  made  the  subject  of  an  exhibit  as  a  publication,  draw- 
ing, photograph,  or  device  which  is  claimed  to  be  an  anticipa- 
tion of  the  patented  device,  and  which  is  proposed  to  be  made 
the  subject  of  expert  testimony,  the  plaintiff  may  fairly  ask 
to  have  it  submitted  in  advance  to  the  inspection  of '  expert 
witnesses  for  the  plaintiff.  If  a  request  for  opportunity  to 
make  this  inspection  be  denied,  or  if  what  is  offered  in  evi- 
dence differs  from  what  was  submitted  for  inspection,  the 
,  present  rules  furnish  the  means  of  preventing  a  plaintiff  from 
being  taken  by  surprise. 

"Rule  48  would  furnish  all  the  information  which  could 
fairly  be  asked,  and  there  would  seldom  be  occasion  to  resort 
to  it.  The  discretion  of  the  trial  judge  can  readily  afford  all 
the  additional  protection  required."  (Todd  v.  Whitaker 
(Ef.  D.  Pa.),  217  Fed.  319,  320.) 

§  924.  Can  be  Used  to  Narrow  the  Issues  by  Requiring  De- 
fendant to  Particularize.  In  sustaining  a  motion  to  require  de- 
fendant to  make  its  answer  more  definite  and  certain,  the  court 
said: 

"This  cause  came  on  for  hearing  upon  the  motion  of  the 
plaintiff  that  the  defendant  be  required  to  make  its  answer 
more  definite  and  certain,  by  setting  forth  in  what  respects 
each  of  the  patents  pleaded  by  reference  in  paragraph  8  of 
the  answer  discloses  any  of  the  elements  or  combinations  of 
elements  described  in  plaintiff's  letters  patent,  and  in  what 
respect  they  negative  the  novelty  and  invention  of  the  device 
shown  and  described  in  complainant's  letters  patent  set  forth 
in  the  bill  of  complaint. 

"This  court  is  in  entire  sympathy  with  this  motion,  believ- 
ing, as  we  do,  that  the  pleading  objected  to  by  the  motion  does 
not  conform  to  the  provisions  of  Equity  Rule  No.  30,  requir- 
ing the  defendant  in  its  answer  to  set  out  its  defense  to  each 
claim  asserted  by  the  bill  in  short  and  simple  terms.  It  seems 
to  me  to  be  the  purpose  of  rule  to  establish  in  equity  cases 
substantially  the  rule  of  pleading  provided  by  such  Codes 
as  that  of  the  state  of  Ohio,  the  requirement  of  which  with 
respect  to  the  answer  in  a  case  either  at  law  or  in  equity  is 
that  it  shall  contain  a  general  or  specific  denial  of  each  ma- 
terial allegation  controverted  by  the  defendant,  and  a  state- 


391  TO  OBTAIN  BETTER  STATEMENT.      Ch.  41,  §  924 

ment  in  ordinary  and  concise  language  of  any  new  matter 
constituting  a  defense,  counterclaim,  or  setoff. 

"It  is  the  practice  in  patent  cases  for  counsel  to  refer  to  a 
great  number  of  patents  as  showing  the  state  of  the  prior  art 
upon  which  the  claims  of  invalidity  and  limited  scope  of  the 
patent  sued  upon  are  based,  and  when  the  case  comes  to  trial 
it  is  usual  to  find  counsel  relying  upon  only  a  very  small  num- 
ber of  such  patents,  and  often  upon  one,  or  at  most  a  few  of 
the  many  features  contained  in  them.  .  .  . 

"It  is  plain  that  from  this  manner  of  pleading  it  results 
that  a  trial  court  has  no  guide  whatever,  when  hearing  oral 
testimony,  for  determining  what  is  relevant  and  what  not 
relevant  to  the  issue,  when  the  state  of  the  prior  art  is  relied 
upon  as  a  defense.  It  is  obvious,  also,  that  under  the  former 
practice  there  were  means  of  defining  the  issues  before  the 
hearing  which  do  not  exist  under  the  new  practice,  and  I  am 
convinced  that  it  was  the  purpose  of  the  new  rules  to  require 
that  counsel  shall  so  study  the  patents  upon  which  they  intend 
to  rely  that  in  their  pleadings  they  can  state  in  short  and 
simple  terms  just  what  they  claim  with  respect  to  them,  rather 
than  to  defer  such  study  until  after  a  record  is  made  up  of 
volumes  of  irrelevant  matter,  and  then,  by  study  and  analysis, 
to  pick  out  what  is  essential  to  a  decision  of  the  case. 

"Counsel  defending  against  this  motion  say  that  the  prac- 
tice followed  in  this  answer  conforms  to  the  practice  which 
has  prevailed  in  this  court  for  more  than  a  score  of  years. 
This  is  no  doubt  true,  but  the  very  purpose  of  these  new 
equity  rules  is  to  change  this  former  practice,  because  it  has 
been  found  to  be  expensive  to  litigants,  burdensome  to  courts, 
and  a  fruitful  source  of  delay  of  justice.  It  is  also  urged  that 
it  is  for  the  court  to  determine  whether  the  patents  referred 
to,  or  any  of  them,  by  their  disclosures  negative  novelty  or 
invention.  With  this  the  court  cannot  agree,  but  is  of  opinion 
that  it  is  for  the  court  to  determine  whether  the  claims  prop- 
erly made  in  the  pleadings  in  a  case  with  respect  to  patents 
referred  to  negative  novelty  or  invention,  and  that  the  new 
rulas  require  this  changed  manner  of  pleading,  to  the  end 
that  such  claims  shall  be  more  clearly  defined  in  the  pleadings 
than  heretofore,  so  that,  when  cases  are  called  for  trial  in  open 
court,  both  judge  and  counsel  may  be  definitely  advised  as 
to  just  what  the  claims  of  the  respective  parties  are. 

"Counsel  .  .  .  contend  that  until  the  plaintiffs  shall  so  far 
disclose  their  position  thnt  the  defendant  may  know  whether 


§  924,  Ch.  41  MANUAL  OF  FEDERAL  PROCEDURE.  392 

they  intend  to  claim  that  all  of  the  parts  in  the  construction 
involved  are  old,  but  that  the  combination  itself  is  new,  or 
whether  they  intend  to  contend  that  the  claims  of  the  patent 
relied  upon  are  valid,  because  they  specify  either  some  new 
element  or  some  new  form  of  an  old  element,  etc.,  the  defend- 
ant should  not  be  required  to  specify  what  particular  defen- 
sive patent  will  be  relied  upon,  or  what  particular  thing  in 
the  evidence  of  the  prior  art  will  be  relied  upon  as  the  final 
reason  that  the  claims  of  the  plaintiff's  patent  are  invalid. 

"To  this  claim  of  counsel  the  answer  suggests  itself  that 
the  timely  interposing  of  a  motion  might  have  secured  a  suffi- 
cient definition  of  the  claims  of  the  plaintiffs  in  the  bill  to 
have  enabled  the  defendant  to  know  just  what  case  it  is  to 
meet.  This  court  cannot  refrain  from  observing  in  this  con- 
nection that  the  old  notion  that  a  suit  at  law  or  in  equity  is 
chiefly  a  game  affording  an  opportunity  for  the  matching  of 
wits  of  counsel  and  for  the  exercise  of  the  ingenuity  of  courts 
is  fast  giving  place  to  the  conception  that  suits  both  at  law 
and  in  equity  should  be  sincere  and  candid  attempts  to  reach 
the  real  point  of  difference  between  the  parties  to  them,  and 
to  secure  a  just  settlement  of  such  difference. 

"With  this  now  current  conception  of  a  suit  in  equity  in 
mind,  it  seems  to  this  court  that  the  application  of  the  new 
equity  rules  to  patent  cases  should  command  the  cordial  sup- 
port and  assistance  of  the  bar,  without  which,  of  course,  judges 
will  be  in  large  part  powerless  to  give  them  full  effect.  It 
may  be  that  there  is  much  in  the  claim  often  made  that  the 
new  equity  rules  cannot  be  successfully  applied  to  pleading 
in  patent  cases,  but  several  judges  throughout  the  country, 
notably  in  the  Southern  district  of  New  York  and  in  Massa- 
chusetts, are  making  a  determined  effort  to  give  the  applica- 
tion of  them  to  such  cases  a  fair  trial.  With  this  effort  this 
court  is  in  entire  sympathy,  both  from  its  conviction  that  it 
is  its  duty  to  give  effect  to  these  rules  prescribed  by  the  Su- 
preme Court  of  the  United  States,  and  also  because  of  its  con- 
viction that  their  application  to  such  cases  will  greatly  curtail 
the  extent  of  records  made  up  in  them,  and  so  the  expense  to 
litigants,  and  will  result  in  a  genuine  reform,  leading  to  a 
more  prompt  decision  of  cases,  and  also  to  a  larger  measure 
of  justice  in  the  determination  of  them.  Delay  of  decision 
and  excessive  cost  often  defeat  justice."  (Coulston  v. 
H.  Franke  Steel  Range  Co.  (N.  D.  Ohio  E.  D.),  221  Fed.  669.) 


393  STKIKING   OUT  REDUNDANT   MATTER.      Ch.  42,  §§  930-931 


CHAPTER  42. 

STRIKING  OUT  REDUNDANT,  IMPERTINENT  OR  SCANDALOUS  MAT- 

TER  UNDER  RULE  21. 
SEC. 

930.  Striking  Out— Rule  21. 

931.  Illustration  of  Impertinent  Matters. 

932.  Illustration  of  Scandalous  Matters. 

933.  Error  in  Striking  must  be  Corrected  by  Appeal  and  not  by  Mandamus. 

§  930.    Striking  Out^-Rule  21. 

Equity  Ride  21.  "  (Scandal  and  impertinence.}  The  right 
to  except  to  bills,  answers,  and  other  proceedings  for  scandal 
or  impertinence  shall  not  obtain,  but  the  court  may,  upon  mo- 
tion or  its  own  initiative,  order  any  redundant,  impertinent, 
or  scandalous  matter  stricken  out,  upon  such  terms  as  the 
court  shall  think  fit."  (3  U.  S.  Comp.  Stats.  1916,  §1536, 
p.  2502;  Foster's  Federal  Practice,  5th  ed.,  pp.  786,  808;  Sim- 
kins'  Federal  Equity  Suit,  3d  ed.,  pp.  310,  348,  423,  434.) 

Under  Equity  Rule  21  exceptions  to  pleadings  for  scandal  or 
impertinence  no.  longer  obtain,  but  such  matter  may  be  stricken 
out  by  the  court.  (Williams  v.  Pope  (W.  D.  N.  Y.),  215  Fed. 
1000.) 

§  931.  Illustration  of  Impertinent  Matters.  In  a  suit  for  in- 
fringement of  letters  patent,  the  defendant  pleaded  in  its  answer 
as  a  defense  and  as  a  counterclaim  damages  for  unfair  conduct 
of  the  complainant  in  respect  to  other  patents;  threatening  of 
defendant's  customers  and  a  conspiracy  in  violation  of  the  Sher- 
man Law.  This  was  claimed  the  right  to  do  under  new  rule  in 
equity  30,  but  Judge  Veeder  in  the  District  Court,  upon  com- 
plainant's motion,  struck  these  sections  out  of  the  answer  as 
being  impertinent.  (Lovell-McConnell  Mfg.  Co.  v.  Bindrim  (2d 
Cir.),  219  Fed.  533,  534,  135  C.  C.  A.  283.  See,  also,  Nikola  Tesla 
Co.  v.  Marconi  Wireless  Tel.  Co.  (S.  D.  N.  Y.),  227  Fed.  903, 
904.) 


§§  932-933,  Ch.  42     MANUAL  OF  FEDERAL  PROCEDURE.  394 

§  932.    Illustration  of  Scandalous  Matters. 

''Where  a  bill  charged  fraudulent  conduct  against  an  at- 
torney, without  stating  any  facts  to  support  the  charge,  such 
charge  is  scandalous,  and  should  be  stricken  from  the  bill." 
(Crim  v.  Rice  (2d  Cir).,  232  Fed.  570,  146  C.  C.  A.  528.) 

§  933.  Error  in  Striking  must  be  Corrected  by  Appeal  and 
not  by  Mandamus.  Equity  Rule  21  abolishes  exceptions,  but  au- 
thorizes the  court,  either  upon  motion  or  of  its  own  initiative,  to 
strike  out  impertinent  matter,  and  a  mistake  in  doing  so  is  one  of 
law  which  can  be  corrected  only  by  appeal  from  the  final  decree 
and  not  by  mandamus.  (Lovell-McConnell  Mfg.  Co.  v.  Bindrim 
(2d  Cir.),  219  Fed.  533,  535.) 


395  DISCOVERY.  Ch.  43,  §  940 


CHAPTER  43. 

DISCOVERY. 

SEO. 

940.  The  Equity  Rule — No.  58. 

941.  Alters  Procedure  not  Principles  of  Discovery. 

942.  Not  a  Part  of  the  Pleadings  and  Waiver  of  Answer  Under  Oath  Does 

not  Relieve  from  Answering  Interrogatories. 

943.  General   Prayer    for    Discovery   in    Bill   not    Sufficient  —  Interrogatories 

Should  be  Filed. 

944.  Purpose  of  Rule  58  is  to  Obtain  Discovery  of  Facts  Material  to  Plain- 

tiff's Case  or  to  Defendant's  Defense,  not  Evidentiary  Matters,  nor  a 
Bill  of  Particulars. 

945.  Matters  Disclosed  in  the  Answer  Material  to  Plaintiff's  Case  are  Subject 

to  Interrogatories. 

946.  Interrogatories  as  to  Writings  as  a  Basis  for  Call  for  Productions. 

947.  Best  Evidence  Rule  Applicable  to  Interrogatories. 

948.  Interrogatories  may  not  be  Used  to  Discover  Evidence. 

949.  Interrogatories  may  not  be  Used  to  Require  Opinion  nor  Expert  Testi- 

mony. 

950.  Interrogatories  may  Test  Contested  Infringement. 

951.  A  Witness  is  not  Subject  to  Interrogatories. 

952.  As  to  Form  of  Objections  to  Interrogatories. 

§  940.    The  Equity  Rule— No.  58. 

Equity  Rule  58.  "(Discovery  —  Interrogatories  —  Inspec- 
tion and  production  of  documents — Admission  of  execution 
or  genuineness.)  The  plaintiff  at  any  time  after  filing  the 
bill  and  not  later  than  twenty-one  days  after  the  joinder  of 
issue,  and  the  defendant  at  any  time  after  filing  his  answer 
and  not  later  than  twenty-one  days  after  the  joinder  of  issue, 
and  either  party  at  any  time  thereafter  by  leave  of  the  court 
or  judge,  may  file  interrogatories  in  writing  for  the  discovery 
by  the  opposite  party  or  parties  of  facts  and  documents  ma- 
terial to  the  support  or  defense  of  the  cause,  with  a  note  at 
the  foot  thereof  stating  which  of  the  interrogatories  each  of 
the  parties  is  required  to  answer.  But  no  party  shall  file  more^X 
tli an  one  set  of  interrogatories  to  the  same  party  without  leave  r" 
of  the  court  or  judge. 


§  940,  Ch.  43  MANUAL  OF  FEDERAL  PROCEDURE.  396 

"If  any  party  to  the  cause  is  a  public  or  private  corpora- 
tion, any  opposite  party  may  apply  to  the  court  or  judge  for 
an  order  allowing  him  to  file  interrogatories  to  be  answered  by 
any  officer  of  the  corporation,  and  an  order  may  be  made 
accordingly  for  the  examination  of  such  officer  as  may  appear 
to  be  proper  upon  such  interrogatories  as  the  court  or  judge 
shall  think  fit. 

"Copies  shall  be  filed  for  the  use  of  the  interrogated  party 
and  shall  be  sent  by  the  clerk  to  the  respective  solicitors  of 
record,  or  to  the  last  known  address  of  the  opposite  party  if 
there  be  no  record  solicitor. 

"Interrogatories  shall  be  answered,  and  the  answers  filed  in 
the  clerk's  office,  within  fifteen  days  after  they  have  been 
served,  unless  the  time  be  enlarged  by  the  court  or  judge. 
Each  interrogatory  shall  be  answered  separately  and  fully 
and  the  answers  shall  be  in  writing,  under  oath,  and  signed  by 
the  party  or  corporate  officer  interrogated.  Within  ten  days 
after  the  service  of  interrogatories,  -objections  to  them,  or  any 
of  them,  may  be  presented  to  the  court  or  judge,  with' proof 
of  notice  of  the  purpose  so  to  do,  and  answers  shall  be  de- 
ferred until  the  objections  are  determined,  which  shall  be  at 
as  early  a  time  as  is  practicable.  In  so  far  as  the  objections 
are  sustained,  answers  shall  not  be  required. 

"The  court  or  judge,  upon  motion  and  reasonable  notice, 
may  make  all  such  orders  as  may  be  appropriate  to  enforce 
answers  to  interrogatories  or  to  effect  the  inspection  or  pro- 
duction of  documents  in  the  possession  of  either  party  and 
containing  evidence  material  to  the  cause  of  action  or  defense 
of  his  adversary.  Any  party  failing  or  refusing  to  comply 
with  such  an  order  shall  be  liable  to  attachment,  and  shall  also 
be  liable,  if  a  plaintiff,  to  have  his  bill  dismissed,  and,  if  a 
defendant,  to  have  his  answer  stricken  out  and  be  placed  in 
the  same  situation  as  if  he  had  failed  to  answer. 

"By  a  demand  served  ten  days  before  the  trial,  either  party 
may  call  on  the  other  to  admit  in  writing  the  execution  or 
genuineness  of  any  document,  letter  or  other  writing,  saving 
all  just  exceptions;  and  if  such  admission  be  not  made  within 
five  days  after  such  service,  the  costs  of  proving  the  document, 
letter  or  writing  shall  be  paid  by  the  party  refusing  or  neglect- 
ing to  make  such  admission,  unless  at  the  trial  the  court  shall 
find  that  the  refusal  or  neglect  was  reasonable."  (3  U.  S. 


397  DISCOVERY.  Ch.  43,  §§  941-943 

Comp.  Stats.  1916,  §1536,  p.  2520;  Foster's  Federal  Practice, 
5th  ed.,  §348,  p.  1120;  Simians'  Federal  Equity  Suit,  3d  ed., 
pp.  292,  390,  498,  507,  520,  525.) 


§  941.    Alters  Procedure  not  Principles  of  Discovery. 

"E'quity  Rule  58  is  not  intended  to  change  the  substantive 
rules  of  equity  as  to  discovery,  but  merely  to  alter  proced 
and  the  interrogatories  authorized  thereunder  are  such  only 
as  tend  to  establish   complainant's  case."     (Speidel   Co 
N.  Barstow  Co.,  232  Fed.  617.) 


tive 
ure, 
mly 
.  v. 


§942.  Not  a  Part  of  the  Pleadings  and  Waiver  of  Answer 
Under  Oath  Does  not  Relieve  from  Answering  Interrogatories. 
Under  Equity  Rule  of  Practice  58,  providing  for  the  filing  of  in- 
terrogatories by  either  party  at  any  time  after  filing  the  bill  or 
answer,  and  not  later  than  twenty-one  days  after  the  joinder  of 
issue,  for  discovery  from  the  party  of  facts  and  documents  neces- 
sary to  the  support  or  defense  of  the  cause,  when  construed  with 
the  rules  prescribing  the  pleadings,  and  in  view  of  the  recog- 
nized purpose  of  the  rules  to  simplify  pleading  and  expedite  the 
taking  of  testimony  and  the  final  hearing,  the  interrogatories 
are  no  longer  part  of  the  pleadings,  as  they  formerly  were,  and 
a  waiver  of  oath  to  the  answer  does  not  relieve  the  defendant 
from  answering  the  interrogatories.  (Luten  v.  Camp  (E.  D. 
Pa.),  221  Fed.  424.) 

In  the  case  last  cited  the  court  said: 

"The  purpose  of  Rule  58  was  to  provide  for  a  simple  prac- 
tice equally  open  to  either  party  for  interrogating  the  other 
without  such  interrogatories  becoming  part  of  the  pleadings." 

§  943.  General  Prayer  for  Discovery  in  Bill  not  Sufficient — 
Interrogatories  Should  be  Filed. 

"Rule  58  provides  for  discovery  upon  filed  interrogatories. 
I  cannot  see  that  any  question  of  discovery  is  involved  upon 
the  present  motion  merely  by  reason  of  the  fact  that  there  is 
a  general  prayer  for  discovery  in  the  bill."  (Webb  v. 
Samuels  (S.  D.  N.  Y.),  227  Fed.  948.) 


§  9-M,  Ch.  43  MANUAL  OF   FEDERAL   PROCEDURE.  398 

§  944.  Purpose  of  Rule  58  is  to  Obtain  Discovery  of  Facts 
Material  to  Plaintiff's  Case  or  to  Defendant's  Defense,  not  Evi- 
dentiary Matters,  nor  a  Bill  of  Particulars. 

"Under  this  rule  [58]  the  plaintiff's  right  of  discovery  ex- 
tends only  to  facts  resting  in  the  knowledge  of  the  defendant 
or  documents  in  his  possession  material  to  the  support  of  the 
plaintiff's  case;  and  the  defendant's  correlative  right  of  dis- 

/covery,  only  to  facts  and  matters  material  to  his  defense;  ana  y 
neither  is  entitled  to  discovery  of  an  inquisitorial  character  ( 
as  to  the  ground  of  action  or  defense  of  the  other;  although^ 
as  theretofore,  the  right  to  such  discovery. as  to  matters  mate- 
rial to  the  cause  of  action  or  defense  of  the  interrogating 
party  will  not  be  defeated  by  the  fact  that  such  matters  also 
involve  the  ground  of  defense  or  action  of  the  interrogated 
party. 

' '  This  construction  of  the  rule  is,  I  think,  emphasized  by 
the  fact  that  the  plaintiff  is  given  the  right  to  file  interroga- 
tories at  any  time  after  his  bill  is  filed,  although  the  answer 
may  not  have  yet  been  filed,  and  at  a  time  when  the  interroga- 
tories can  relate  only  to  his  own  cause  of  action ;  while,  on  the 
other  hand,  the  defendant  is  given  no  right  to  file  interroga- 
tories until  after  his  answer  has  been  filed,  thus  indicating 
that  the  discovery  to  which  he  is  entitled  is  to  relate  to  the 
ground  of  defense  set  forth  in  the  answer,  and  not  to  the"\ 
plaintiff's  cause  of  action,  as  to  which  the  interrogatorias  • 
might  have  been  filed  before  the  answer,  if  such  right  had  : 
been  contemplated  by  the  rule.  Furthermore,  the  concluding^1 
phrase  in  the  language  of  the  rule  as  above  quoted,  providing 
that  the  court  or  judge  may  make  such  orders  as  may  be  ap- 
propriate to  enforce  answers  to  interrogatories  or  the  produc- 
tion of  documents  'in  the  possession  of  either  party  and  con- 
taining evidence  material  to  the  cause  of  action  or  defense  of 
his  adversary,'  clearly  shows,  from  its  grammatical  construc- 
tion, that  the  matters  as  to  which  a  discovery  may  be  obtained 
must  be 'material  to  the  cause  of  action  or  defense  of  the  in- 
terrogating party,  the  'adversary'  clearly  referred  to  in  the 
ruje. 

t*    "This  construction   of   the   rule   furthermore  finds   strong 
support  by  analogy,  in  the  fact  that  under  state  statutes  au-  . 

|  thorizing  the  examination    of  parties    before    trial  at  the  in- 

/  stance  of  the  adverse  party,  operating  as  a  substitute  for 
/ 


399  .     DISCOVERY.  Ch.  43,  §  944 

discovery  in  equity,  such  examination  will  not  be  permitted 
to  enable  the  examining  party  'to  ascertain' the  evidence  on' 
which  the  opposite  party  bases  his  cause  of  action  or  defense, 
or  to  ascertain  the  names  of  his  witnesses,  or  for  the  purpose 
of  aiding  the  party  in  the  preparation  of  his  case  for  trial.' 
14  Cyc.  342 ;  ancTcases  cited  in  notes  37,  38  and  39. 

"So  under  statutes  providing  for  the  production  of  books 
or  papers  of  the  adverse  party,  production  will  not  be  per- 
mitted to  enable  a  party  'to  ascertain  the  evidence  on  which 
his  opponent's  action  or  claim  rests,  unless  the  claim  is  made 
that  they  are  forgeries  and  the  inspection  is  sought  to  enable 
the  party  to  prove  that  fact.'  14  Cyc.  371,  and  cases  cited  in 
notes  to  59  and  60.  'But  where  the  books  or  documents  are 
material  to  the  case  of  the  applicant,  it  is  no  objection  to  their 
production  or  inspection  that  they  relate  also  to  the  case  of 
his  adversary.'  14  Cye.  371,  and  cases  cited  in  note  6. 

"This  construction  of  the  rule  is  not,  as  I  view  it,  in  con- 
flict with  the  decisions  in  Luten  v.  Camp,  221  Fed.  424,  and 
Blast  Furnace  Appliances  Co.  v.  Worth  Bros.  Co.,  221  Fed. 
.430,  in  which  the  discovery  allowed  related  directly  to  facts 
and  documents  within  the  knowledge  or  possession  of  the  in- 
terrogated party,  which  were  material  to  the  ground  of  action 
or  defense  of  the  interrogating  party.  And  taking  this  view"" 
of  the  rule  I  cannot  agree  in  the  correctness  of  the  doctrine 
which  may  apparently  be  implied  from  the  opinions  in  Bronk 
v.  Scott  Co.l7tVCir.);  211  Fed.  338,  128  C.  C.  A.  17,  and 
P.  M.  Co.  v.  Ajax  Rail  Anchor  Co.,  216  Fed.  634,  to  the  effect! 
that  under  this  rule  either  party  may  require  discovery  as  to  \ 
the  nature  of  his  adversary's  case,  the  claims  which  he  makes 
in  regard  thereto  and  the  facts  supporting  it.  These'  cases 
apparently  proceed,  in  part  at  least,  upon  the  implied  theory 
that  the  object  of  the  rule  is  to  enable  either  party  to  obtain 
a  more  definite  statement  of  the  other's  case  and  greater  par- 
ticularity as  to  the  claims  upon  which  he  intends  to  rely  ;„ 
whereas  I  am  constrained  to  conclude  from  the  language  of 
the  rule  itself  that  it  was  not  intended  to  serve  as  a  provision 
for  requiring  further  particulai\s.  which  is  covered  by  the  20th 
Equity  Rule,  but  to  accomplish  the  very  different  purpose  of 
enabling  either  party  to  obtain  discovery  of  facts  and  docu- 
ments material  to  his  own  rasp  which  are  within  the  knowl- 
edge or  in  the  possession  of  the  adverse  party. 


§§  945-948,  Ch.  43     MANUAL  OF  FEDERAL  PROCEDURE.  -  400 

"It  is  furthermore  clear  that  to  the  extent  that  discovery 
may  be  granted  as  to  material  matters  of  fact,  it  must  be  lim- 
ited to  an  inquirylis  to  the  material  facts,  and  does  not  extend 
to  a  disclosure  of  evidence  or  facts  which  merely  tend  to  prove 
the  material  facts.  P.  M.  Co.  v.  Ajax  Bail  Anchor  Co.,  216 
Fed.,  at  page  636;  Luten  v.  Camp,  221  Fed.,  at  page  428." 
(J.  H.  Day  Co.  v.  Mountain  City  Mill  Co.  (E.  D.  Tenn.  S.  D.), 
225  Fed.  622,  623,  624.) 

§  945.  Matters  Disclosed  in  the  Answer  Material  to  Plaintiff's 
Case  are  Subject  to  Interrogatories.  Under  Equity  Rule  58,  per- 
mitting a  plaintiff  to  file  interrogatories  for  discovery  within 
twenty-one  days  after  the  joinder  of  issues,  when  that  rule  is 
construed  in  connection  with  the  purpose  of  the  rules  to  simplify 
the  pleadings  and  expedite  the  production  of  proof,  matters  dis- 
closed in  the  answer  material  to  plaintiff's  case  may  be  made  the 
subject  of  interrogatories.  (Blast  Furnace  Appliances  Co.  v. 
Worth  Bros.  Co.  (E.  D.  Pa.),  221  Fed.  430.) 

§  946.  Interrogatories  as  to  Writings  as  a  Basis  for  Call  for 
Production.  Plaintiff  might  also  inquire  as  to  whether  the 
license  was  in  writing  and  the  date  thereof,  and  for  the  corre- 
spondence relating  thereto,  in  order  that  he  might  call  for  its 
production.  (Blast  Furnace  Appliances  Co.  v.  Worth  Bros.  Co. 
(E.  D.  Pa.),  221  Fed.  430.) 

§  947.    Best  Evidence  Rule  Applicable  to  Interrogatories. 

"Interrogatories  as  to  the  precise  showing  by  line's,  letters, 
figures,  and  characters  on  blue-prints  are  improper,  since  the 
prints  themselves  are  the  best  evidence,  and,  if  in  the  posses- 
sion of  the  defendants,  their  production  may  be  compelled  by 
order  of  the  court."  (Luten  v.  Camp  (E.  D.  Pa.),  221  Fed. 
424.) 

§  948.    Interrogatories  may  not  be  Used  to  Discover  Evidence. 

"In  regard  to  the  interrogatories  which  were  filed  under 
Rule  58  of  the  equity  rules,  either  party  has  a  right  to  require 
the  other  to  answer  questions  relating  to  material  matters. 


401  DISCOVERT.  Ch.  43,  §  949 

This  rule  was  in  substance  taken  from  order  31  of  the  English 
equity  rules  of  practice,  which  has  been  in  force  for  a  consid- 
erable time,  and  has  been  construed  and  applied  in  very  many 
English  cases.  It  is  well  settled  by  these  decisions  that  the 
disclosure  of  evidence  is  not  required.  The  nature  of  the  case 
and  the  facts  supporting  it  may  be  required  to  be  stated. 
Mere  evidence  or  facts  tending  to  prove  the  nature  of  the  case, 
or  the  facts  upon  which  it  is  based,  are  quite  generally  held 
not  proper  to  be  inquired  into.  Marriott  v.  Chamberlain,  17 
Q.  B.  1).  154;  ITooton  v.  Dalby  (1907),  2  K.  B.  18."  (P.  M. 
Co.  v.  Ajax  Rail  Anchor  Co.  (N.  D.  111.  E.  D.),  216  Fed.  634, 
636.) 

Under  Equity  Rule  of  Practice  58,  entitling  plaintiff  to  a  dis- 
covery of  facts  material  to  the  support  of  the  cause,  and  author- 
izing the  court  or  judge  to  make  orders  for  the  production  of 
documents  in  the  possession  of  either  party  containing  evidence 
material  to  the  cause  of  action  or  defense  of  the  other  party,  a 
party  may  interrogate  his  adversary  as  to  the  facts  on  which 
his  cause  of  action  is  based,  but  not  as  to  mere  evidence  or  facts 
tending  to  prove  the  nature  of  the  case,  or  facts  tending  to  prove 
the  main  facts.  (Luten  v.  Camp  (E.  D.  Pa.),  221  Fed.  424.) 

Interrogatories  as  to  notice  to  the  inventor  of  the  commence- 
ment, completion  and  use  of  the  infringing  furnace  is  not  a  fact 
material  to  the  support  of  the  plaintiff's  cause,  but  is  merely  evi- 
dentiary on  the  issue  of  the  existence  of  the  license  from  the  in- 
ventor, and  is  not  a  proper  subject  of  inquiry.  (Blast  Furnace 
Appliances  Co.  v.  Worth  Bros.  Co.  (E.  D.  Pa.),  221  Fed.  430.) 

§  949.  Interrogatories  may  not  be  Used  to  Require  Opinion 
nor  Expert  Testimony.  It  is  improper  to  propound  interroga- 
tories requiring  a  comparison  between  the  blue-prints  and  the 
plaintiff's  plans,  which  is  a  matter  for  expert  testimony,  or  to  be 
determined  by  inspection  of  the  documents  at  the  trial,  and  ia 
merely  evidentiary,  and  not  a  fact  in  support  of  plaintiff's  case. 
(Luten  v  Camp  (E.  D.  Pa.),  221  Fed.  424.) 

Manual— 2» 


§  949,  Ch.  43         MANUAL  OP  FEDERAL  PROCEDURE.  402 

"The  second,  third,  and  fourth  interrogatories  inquire  as 
to  the  opinion  of  the  complainant  as  to  the  construction  of 
the  patent.  This  is  a  matter  to  be  supplied  by  expert  testi- 
mony in  support  of  the  contention  of  infringement,  or  the 
validity  of  the  patent,  or  both.  It  is  a  matter  purely  eviden- 
tiary, and  one  which  within  the  English  rule,  and  the  proper 
construction  of  Rule  58  cannot  be  inquired  into.  The  same 
considerations  apply  to  interrogatories  5,  6,  and  7,  inquiring 
whether  complainant  has  manufactured  devices  under  its 
patent,  whether  it  has  any  interest  in  other  patents,  and 
whether  it  considers  defendant's  device  to  infringe  any  such 
other  patents.  These  questions  all  relate  to  evidence  of  cir- 
cumstances or  facts  tending  to  prove  some  contention  of  de- 
fendant, supposedly  the  one  set  up  in  the  sixth  paragraph  of 
the  answer,  which  is  to  be  struck  out.  The  eighth  and  ninth 
interrogatories,  inquiring  whether  complainant  contemplates 
bringing  other  patent  suits,  and  whether  it  had  knowledge  of 
one  of  the  letters  pleaded  in  the  answer,  should  be  treated  in 
the  same  way."  (P.  M.  Co.  v.  Ajax  Rail  Anchor  Co.  (N.  D. 
111.  E.  D.),  216  Fed.  634,  636.) 

A  party  will  not  be  required  to  answer  interrogatories  pro- 
pounded under  Equity  Rule  58,  where  they  suggest  a  "fishing 
expedition,"  or  at  least  an  attempt  to  pry  into  the  adversary's 
case.  The  court  said: 

"Rule  58  was  not  intended  to  be  used  to  impose  unreason- 
able burdens  upon  parties,  or  to  require  of  parties  opinions 
either  as  to  the  reading  of  drawings  or  as  to  the  functions  of 
particular  parts  of  the  machinery.  It  provides  'for  the  dis- 
covery, by  the  opposite  party  or  parties,  of  facts  and  docu- 
ments material  to  the  support  or  defense  of  the  cause.' 
Plainly  it  is  intended  to  aid  a  party  in  making  out  his  case, 
_.-,,  where  the  ascertainment  of  facts  in  support  or  defense  of  the 
cause  is  difficult.  We  have  used  the  word  'difficult,'  because 
we  have  recognized  that  there  is  a  line  of  cases  holding  to  the 
doctrine  that  discovery  will  not  be  permitted  if  the  facts  can 
be  otherwise  procured.  We  do  not  believe  that  that  is  a 
correct  expression  of  the  law,  because  a  party  should  not  be 
put  to  unnecessary  labor  or  difficulty  in  making  out  his  case. 
Yet  he  should  not  impose  a  burden  upon  the  opposite  party 
in  requiring  the  latter  to  make  discovery,  if  the  knowledge  of 


403  DISCOVEEY.  Ch.  43,  §  950 

the  facts  can  be  procured  otherwise  with  ease.  Knowledge 
of  the  apparatus  and  method  of  the  opposite  party  can  be 
procured  with  ease  by  inspection.  If  there  be  identity  of  the 
plaintiffs'  and  defendant's  apparatus  and  methods,  such  iden- 
tity can  be  easily  ascertained,  and  be  the  subject  of  parol 
testimony  by  those  who  have  made  such  inspection."  (Win- 
dow Glass  Machine  Co.  v.  Brookville  Glass  &  Tile  Co.,  229  Fed. 
833,  836.) 

§  950.    Interrogatories  may  Test  Contested  Infringement. 

"The  general  purpose  of  Rule  58  is  to  expedite  the  decision 
of  causes  by  eliminating  the  necessity  for  inquiry  into  the  un- 
controverted  features  of  what  is  included  in  the  issues  as 
made  up  of  record.  The  rule  embraces  all  material  inquiries. 
One  of  them  here  is  the  fact  of  infringement.  The  answer 
denies  infringement.  It  also  denies  the  existence  of  any  pro- 
prietary right.  The  plaintiff  must  prove  infringement.  If 
it  be  not  a  contested  fact,  it  can  be  admitted  before  trial.  In- 
terrogatories will  test  this.  Any  material  inquiry,  subject  to 
the  qualification  next  noted,  may  therefore  be  made,  the  effect 
of  an  answer  to  which  may  narrow  the  field  of  controversy  at 
the  trial.  The  distinction  between  facts  and  judgment  from 
the  facts,  and  between  facts  to  be  proven  and  evidentiary 
facts,  so  clearly  expressed  by  Judge  Thompson  in  Luten  v. 
Camp  (D.  C.),  221  Fed.  424,  and  Blast  Furnace  Appliances 
Co.  v.  Worth  Bros.  Co.  (D.  C.),  221  Fed.  430,  must  be  kept 
in  mind."  (Rodman  Chemical  Co.  v.  E.  F.  Houghton  Co., 
233  Fed.  470,  471.) 

In  Blast  Furnace  Appliances  Co.  v.  Worth  Bros.  Co.  (E.  D. 
Pa.),  221  Fed.  430,  the  court  held  that  in  a  suit  to  enjoin  in- 
fringement of  a  patent  by  the  construction  of  a  second  blast  fur- 
nace from  plans  furnished  by  the  inventor  for  the  first  furnace, 
where  the  defendant  pleaded  a  setoff  on  account  of  defects  in  the 
plans  for  the  first  furnace,  plaintiff  may  interrogate  defendant 
as  to  u'hat  payments  were  made  for  the  first  plaiis  and  when. 

Where  defendant  pleaded  a  license  from  the  inventor,  plaintiff 
might  interrogate  him  as  to  the  date  of  the  construction  of  the 
furnace,  in  order  to  fix  the  date  of  the  infringement,  and  also  as 
bearing  upon  the  question  of  license. 


§§  951-952,  Ch.  43     MANUAL  OP  FEDERAL  PROCEDURE.  404 

Plaintiff  may  also  ask  for  the  production  of  the  drawings  fur- 
nished for  the  first  furnace  and  of  the  corrections  made  therein, 
from  which  drawings  the  second  furnace  was  constructed. 

In  a  suit  against  a  county,  a  bridge  contractor,  and  a  bridge 
designer,  to  restrain  an  infringement  of  a  patent  for  reinforced 
concrete  construction,  proof  that  the  contract  for  the  bridge  and 
the  blueprints  contained  therein  infringed  the  patent,  and  that 
they  were  prepared  or  adopted  by  the  defendants,  is  necessary 
to  establish  the  right  to  relief,  and  plaintiff  can  therefore  in- 
terrogate the  defendants  in  relation  thereto.  (Luten  v.  Camp 
(E.  D.  Pa.),  221  Fed.  424.) 

§  951.  A  Witness  is  not  Subject  to  Interrogatories.  A  mere 
witness  not  a  party  to  a  suit  cannot  be  compelled  to  answer  in- 
terrogatories attached  to  the  bill.  (First  State  Bank  of  Milliken 
v.  Spencer  (8th  Cir.),  219  Fed.  503,  135  C.  C.  A.  253.) 

§  952.  As  to  Form  of  Objections  to  Interrogatories.  The  rule 
does  not  provide  for  any  particular  form  of  objections.  In  P.  M. 
Co.  v.  Ajax  Rail  Anchor  Co.  (N.  D.  111.  E.  D.),  216  Fed.  634,  635, 
complainant  objected  to  all  the  interrogatories  and  moved  that 
they  be  stricken  out,  on  account  of  impertinence  and  immate- 
riality. 

Below  is  given  a  form  containing  various  suggestive  objec- 
tions to  interrogatories. 


405  DISCOVERY.  CJi.  43,  §  052 

In  the  United  States  restrict  Court  for  the  Southern  Division  of  the  Southern 
District  of  California. 


Florence  Black, 

Plaintiff, 


v. 


James  Smith, 

Defendant. 


In  Equity — No. 


OBJECTIONS  TO  PLAIN-HIT'S  INTERROGATORIES. 


Comes  now  the, defendant  James  Smith  and  mafceg  objections  to  the  inter- 
rogatories propounded  by  plaintiff  as  follows,  to  wit: 

To  Interrogatory  No.  1,  on  the  ground  that  the  facts  sought  rest  as  much  in 
the  knowledge  of  plaintiff  as  of  defendant;  that  the  interrogatory  is  of  an 
inquisitorial  character  and  the  facts  sought  are  not  material  to  the  support  of 
plaintiff's  case,  but  said  Interrogatory  is  intended  to  anticipate  the  defense 
of  the  statute  of  limitations. 

To  Interrogatory  No.  2,  on  the  ground  that  the  facts  sought  are  not  ultimate 
facts,  or  material  to  the  support  of  plaintiff's  case,  and  the  allegations  of  the 
plaintiff  in  respect  to  the  facts  if  true  are  not  difficult  to  be  proven  by  other 
evidence. 

To  Interrogatory  No.  3,  on  the  ground  that  the  disclosure  is  sought  of  facts 
which  would  merely  tend  to  prove  other  facts,  and  is  not  material  to  plaintiff's 
case,  or  if  material  may  be  reached  by  demand  to  admit  the  genuineness  of  the 
instrument  mentioned  in  the  interrogatory. 

To  Interrogatory  No.  4,  as  seeking  disclosure  of  evidence  not  the  best 
evidence.  ' 

To  Interrogatory  No.  5,  as  calling  for  opinion  evidence  and  for  facts  which 
are  the  subject  of  expert  testimony. 

To  Interrogatory  No.  6,  on  the  ground  that  said  interrogatory  is  inquisi- 
torial, irrelevant  and  premature. 

To  Interrogatory  No.  7,  as  calling  for  a  bill  of  particulars. 

To  Interrogatory  No.  8,  on  the  ground  that  said  interrogatory  is  too  broad, 
and  is  inquisitorial. 

To  Interrogatory  No.  9,  as  being  impertinent,  inquisitorial  and  not  material 
to  plaintiff's  case. 

To  Interrogatory  No.  10,  as  being  too  broad,  and  further,  as  being  inquisi- 
torial and  as.  seeking  to  ascertain  evidence  on  which  the  defendant  may  base 
his  defenses,  and  because  the  facts  sought  to  be  elicited  are  not  material  to 
plaintiff's  case,  are  merely  evidentiary  and  irrelevant. 

Wm.  Brown, 
Solicitor  for  Defendant. 


§  960,  Ch.  M  MANUAL  OF  FEDERAL,  PROCEDURE.  400 


CHAPTER  44. 

THE  ANSWER  AS  A   TRAVERSE. 

SEO. 

960.  General  Statement. 

961.  Some  Differences  in  Answers  in  Federal  and  State  Courti. 

962.  Answer  as  Such  is  not  Evidence. 

963.  Time  for  Answer. 

964.  Contents  of  Answer. 

965.  Rules  as  to  Form  of  Answer. 

966.  Amendment's. 

967.  Attacks  upon  Answer. 

968.  Reply — When  Required — When  Oause  at  Tssne. 

969.  Setting  Down  for  Hearing  on  Bill  and  Answer. 

970.  Supplemental  Answer. 

§960.  General  Statement.  The  similarity  of  the  provisions 
of  the  new  equity  rules  that  took  effect  February  1,  1913,  to  the 
code  provisions  of  the  several  states  that  have  adopted  the  re- 
form procedure,  is  especially  marked  with  respect  to  the  answer 
in  equity.  Under  Rule  18  technical  forms  of  pleading  are  abol- 
ished. Under  Rule  29,  defenses  formerly  presentable  by  pleas 
or  demurrers  must  be  contained  in  the  answer,  though  they  may 
be  separately  heard.  Rule  30  provides  for  specific  denials,  de- 
nials on  lack  of  knowledge,  admission  of  averments  not  denied, 
amendments  on  notice  when  justice  requires  and  allows  incon- 
sistent defenses,  setoffs,  and  counterclaims  in  the  answer. 

There  has  been  much  hesitation  on  the  part  of  the  profession 
to  discard  the  old  forms  in  framing  answers  as  well  as  in  draw- 
ing bills.  In  the  case  of  Pittsburg  Water  Heater  Co.  v.  Beler 
Water  Heater  Co.  (W.  D.  Pa.),  222  Fed.  950,  952,  953,  the  courts 
commented  on  this  matter  as  follows: 

"It  is  natural,  when  bills  in  equity  are  drafted  without  re- 
gard to  the  equity  rules,  that  answers  should  be  drawn  with 
equal  inattention  to  the  provisions  of  such  rules.  Without 
going  into  the  answer  in  this  case  at  length,  it  is  sufficient  to 


407  ANSWKB    AS    A    TRAVERSE.         Ch.  44,  §§  9G1-962 

say  that  it  is  not  in  accord  with  Rule  30,  in  that  it  does  not 
set  forth  'in  short  and  simple  terms,'  the  matters  of  defense. 
As  an  illustration  it  is  only  necessary  to  refer  to  the  fact  that 
eight  lines  of  the  printed  answer  are  used  to  reserve  to  de- 
fendant some  supposed  benefit  by  reason  of  the  manifest  im- 
perfections of  the  plaintiff's  bill.  The  real  defenses  to  the 
bill  are  that  Shook  was  not  the  first  and  original  inventor 
and  that  there  was  no  infringement." 

§  961.  Some  Differences  in  Answers  in  Federal  and  State 
Courts.  1.  Points  of  law  raised  by  demurrer  or  plea  in  state 
practice  now  may  be  set  out  in  the  answer  under  Equity  Rule  29 
and  may  be  separately  heard  and  disposed  of  before  trial  of  the 
principal  case  in  the  discretion  of  the  court.  (See  chapter  40, 
"Answer  as  a  Plea.") 

2.  Counterclaim  covers  matters    pleaded    in    state    courts    by 
cross-bill  or  cross-complaint. 

3.  No  general  denial. 

4.  No  verification  unless  special  relief  pending  suit  sought. 

§  962.  Answer  as  Such  is  not  Evidence.  The  answer  is  no 
longer  evidence,  except  possibly  as  containing  admissions  on 
the  part  of  the  defendant. 

Under  the  old  chancery  practice  the  answer  was  considered  as 
evidence  because  the  testimony  of  a  party  was  not  admissible  on 
the  ground  that  interest  made  him  incompetent.  The  reason -for 
making  the  answer  evidence  disappeared  with  the  change  of 
practice  authorized  by  §858,  Rev.  Stats.,  providing  that  "in  the 
oonrts  of  the  United  States  no  witness  shall  be  excluded  in  any 
action  .  .  .  because  he  is  a  party  to  or  interested  in  the  issues 
tried." 

The  new  rules  conform  to  the  present  conditions,  the  revision 
omitting  or  changing  all  that  existed  in  the  old  rules  supporting 
the  proposition.  Thus  old  Equity  Rule  59,  providing  for  verifi- 
cation of  the  answer,  has  been  superseded  by  new  Rule  30,  which 


§  963,  Ch.  44          MANUAL  OF  FEDERAL  PROCEDURE.  403 

provides  for  the  verification  of  "every  pleading  which  is  required 
to.  be  sworn  to  by  statute,  or  these  rules." 

Old  Equity  Rule  41.  "Answer,  when  not  evidence,"  is  not 
contained  in  the  new  rules.  So,  also,  there  has  been  omitted 
from  the  revision  old  Rules  42,  43  and  44,  relating  to  answering 
interrogatories  contained  in  the  bill.  New  Equity  Rule  58  is  the 
only  relic  of  the  old  chancery  practice  requiring  defendants  to 
answer  under  oath. 

The  answer  could  not  be  evidence  under  the  new  rules,  as 
Equity  Rule  30  provides:  "The  answer  may  state  as  many  de- 
fenses, in  the  alternative,  regardless  of  consistency,  as  the  de- 
fendant deems  essential  to  his  defense."  In  the  event  of  plead- 
ing of  inconsistent  defenses,  if  the  answer  were  evidence,  there 
would  be  a  conflict  of  evidence. 

§  963.  Time  for  Answer.  Unless  the  defendant  files  within 
twenty  days  after  service  of  the  subpoena  some  "other  defense" 
as  permitted  by  Equity  Rules  12  and  16,  or  "unless  the  time 
shall  be  enlarged  for  cause  shown,  by  a  judge  of  the  court"  un- 
der Rule  16,  it  is  the  duty  of  the  defendant  to  file  an  answer. 

tinder  Rule  29,  "If  the  defendant  move  to  dismiss  the  bill  or 
any  part  thereof,  the  motion  may  be  set  down  for  hearing  by 
either  party  upon  five  days'  notice,  and,  if  it  be  denied,  answer 
shall  be  filed  within  five  days  thereafter,  or  a  decree  pro  con~ 
fesso  entered." 

Equity  Rule  32  provides  for  the  answer  to  amended  bill  as 
follows:  "In  every  case  where  an  amendment  to  the  bill  shall 
be  made  after  answer  filed,  the  defendant  shall  put  in  a  new 
or  supplemental  answer  within  ten  days  after  that  on  which  the 
amendment  or  amended  bill  is  filed,  unless  the  time  is  enfarged 
or  otherwise  ordered  by  a  judge  of  the  court;  and  upon  his  de- 
fault, the  like  proceedings  may  be  had  as  a  case  of  an  omission 
to  put  in  an  answer." 


409  ANSWER   AS    A    TRAVERSE.  Ch.  44,  §  964 

§964.    Contents  of  Answer. 

Part  Rule  29.  ' '  Every  defense  in  point  of  law  arising  upon 
the  face  of  the  bill,  whether  for  mis  joinder,  nonjoinder,  or 
insufficiency  of  fact  to  constitute  a  valid  cause  of  action  in 
equity  which  might  heretofore  have  been  made  by  demurrer 
or  plea,  shall  be  made  by  motion  to  dismiss  or  in  the  answer. 
.  .  .  Every  defense  heretofore  presentable  by  plea  in  bar 
or  abatement  shall  be  made  in  the  answer,  and  may  be  sepa- 
rately heard  and  disposed  of  before  the  trial  of  the  principal 
case  in  the  discretion  of  the  court."  (3  U.  S.  Comp.  Stats. 
1916,  §1536,  p.  2508;  Foster's  Federal  Practice,  5th  ed.,  pp. 
455,  458,  485,  508,  562,  623,  630,  765,  786,  836, 1118, 1174;  Sim- 
kins'  Federal  Equity  Suit,  3d  ed.,  pp.  32,  35,  36,  122,  124,  128, 
129,  200,  204,  261,  296,  301,  310,  311,  362,  375,  386,  394,  395, 
398,  399,  402,  404,  405,  407,  411,  412,  414,  416,  418,  419,  421, 
426,  431,  442,  452.) 

Equity  Rule  30.  Answer — contents — counterclaim.  "The 
defendant  in  his  answer  shall  in  short  and  simple  terms  set 
out  his  defense  to  each  claim  asserted  by  the  bill,  omitting 
any  mere  statement  of  evidence  and  avoiding  any  general 
denial  of  the  averments  of  the  bill,  but  specifically  admitting 
or  denying  or  explaining  the  facts  upon  which  the  plaintiff 
relies,  unless  the  defendant  is  without  knowledge,  in  which 
case  he  shall  so  state,  such  statement  operating  as  a  denial.. 
Averments  other  than  of  value  or  amount  of  damage,  if  not 
denied,  shall  be  deemed  confessed,  except  as  against  an  infant, 
lunatic,  or  other  person  non  compos  and  not  under  guardian- 
ship. The  answer  may  be  amended,  by  leave  of  the  court  or 
judge,  upon  reasonable  notice,  so  as  to  put  any  averment  in 
issue,  when  justice  requires  it.  The  answer  may  state  as 
many  defenses,  in  the  alternative,  regardless  of  consistency, 
as  the  defendant  deems  essential  to  his  defense. 

"The  answer  must  state  in  short  and  simple  form  any  coun- 
terclaim arising  out  of  the  transaction  which  is  the  subject- 
matter  of  the  suit,  and  may,  without  cross  bill,  set  out  any 
set-off  or  counterclaim  against  the  plaintiff  which  might  be 
the  subject  of  an  independent  suit  in  equity  against  him, 
and  such  set-off  or  counterclaim,  so  set  up,  shall  have  the 
same  effect  as  a  cross  suit,  so  as  to  enable  the  court  to  pro- 
nounce a  final  judgment  in  the  same  suit  both  on  the  original 


§  9G5,  Ch.  44  MANUAL  OF  FEDERAL  PROCEDURE.  410 

and  cross  claims."'  (3  U.  S.  Comp.  Stats.  1916,  §1536, 
p.  2509;  Foster's  Federal  Practice,  5th  ed.,  pp.  624,  628,  630, 
681,  683,  686,  695,  697,  703,  716,  729,  1060;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  pp.-  283,  285,  362,  375,  394,  395,  411-413, 
421-428,  429-431,  436-438,  444-449,  451-455.) 

Chapter  45,  post^  deals  with  the  "Counterclaim  and  Setoff" 
provided  for  in  the  last  section  of  Equity  Rule  30,  above  quoted. 

In  Pittsburg  Water  Heater  Co.  v.  Beler  Water  Heater  Co. 
(W.  D.  Pa.),  222  Fed.  950,  the  court  said: 

"It  seems,  therefore,  a  proper  inference  from  the  provi- 
sions of  the  equity  rules  with  respect  to  oaths  to  portions  of 
the  record  other  than  the  answer,  and  the  omission  of  the 
requirement  of  an  oath  to  an  answer,  that  an  answer  in  equity 
need  not  now  be  made  under  oath. ' ' 

§  965.  Rules  as  to  Form  of  Answer.  Equity  Rule  18  provides : 
"Unless  otherwise  prescribed  by  statute  or  .these  rules,  the  tech-' 
nical  forms  of  pleading  in  equity  are  abolished."  Under  Equity 
Rule  24,  the  answer  is  required  to  be  "signed  individually  by 
one  or  more  solicitors  of  record,  and  such  signatures,  shall  be 
considered  as  a  certificate  by  each  solicitor  that  he  has  read 
the  pleading  so  signed  by  him;  that  upon  the  instruction  laid 
before  him  regarding  the  case  there  is  good  ground  for  the  same ; 
that  no  scandalous  matter  is  inserted  in  the  pleading;  and  that 
it  is  not  interposed  for  delay." 

There  is  no  provision  as  to  verification. 

If  the  answer  contains  a  counterclaim  or  setoff  which  seeks 
special  relief  pending  the  suit,  the  counterclaim  or  setoff  should 
be  verified  by  analogy  to  the  fifth  subdivision  of  Rule  25,  pro- 
viding: "If  special  relief  pending  the  suit  be  desired,  the  bill 
should  be  verified  by  the  oath  of  the  plaintiff  or  someone  having 
knowledge  of  the  facts  upon  which  such  relief  is  asked. "  Incase 
the  pleading  is  verified,  Equity  Rule  36  provides  for  the  officers 
before  whom  the  same  may  be  done,  as  follows:  "Every  pleading 
which  is  required  to  be  sworn  to  by  statute,  or  these  rules,  may 
be  verified  before  any  justice  or  judge  of  any  court  of  the  United 


411  ANSWER   AS    A    TRAVERSE.         Ch.  44,  §§  966-967 

States,  or  of  any  state  or  territory,  or  of  the  District  of  Colum- 
bia, or  any  clerk  of  any  court  of  the  United  States,  or  of  any 
territory,  of  the  District  of  Columbia,  or  any  notary  public." 
Equity  Rule  78  provides  for  an  affirmation  in  lieu  of  an  oath 
where  the  party  has  conscientious  scruples  against  taking  an 
oath. 

§  966.  Amendments.  By  Equity  Rule  30,  above  quoted 
(§964),  it  is  provided  that  "the  answer  may  be  amended  by 
leave  of  the  court  or  judge  upon  reasonable  notice,  so  as  to  put 
any  averment  in  issue  when  justice  requires  it." 

By  Equity  Rule  33,  an  answer  setting  up  an  affirmative  de- 
fense, setoff,  or  counterclaim,  "if  found  insufficient  but  amend- 
able, the  court  may  allow  an  amendment  upon  terms  or  strike 
out  the  matter." 

§967.  Attacks  upon  Answer.  Further  and  particular  state- 
'ment  may  be  required. 

Equity  Rule  20.  "A  further  and  better  statement  of  the 
nature  of  the  claim  or  defense,  or  further  and  better  particu- 
lars of  any  matter  stated  in  any  pleading,  may  in  any  case 
be  ordered,  upon  such  terms,  as  to  costs  and  otherwise,  as 
may  be  just."  (Chapter  41,  supra.) 

Redundant,  impertinent,  or  scandalous  matter  may  be  stricken 
out. 

Equity  Rule  21.  "The  right  to  except  to  bills,  answers, 
and  other  proceedings  for  scandal  or  impertinence  shall  not 
obtain,  but  the  court  may,  upon  motion  or  its  own  initiative, 
order  any  redundant,  impertinent  or  scandalous  matter 
stricken  out,  upon  such  terms  as  the  court  shall  think  fit." 
(Chapter  42,  supra.) 

The  sufficiency  of  the  defense  may  be  tested  by  a  motion  to 
strike  out. 

Equity  Rule  33.  "Exceptions  for  insufficiency  of. an  an- 
swer are  abolished.  But  if  an  answer  set  up  an  affirmative 
defense,  set-off,  or  counterclaim,  the  plaintiff  may,  upon  five 


§§  968-970,  Ch.  44    MANUAL  OF  FEDERAL  PROCEDURE.  412 

days'  notice,  or  such  further  time  as  the  court  may  allow,  test 
the  sufficiency  of  the  same  by  motion  to  strike  out.  If  found 
insufficient  but  amendable  the  court  may  allow  an  amendment 
upon  terms,  or  strike  out  the  matter."  (3  U.  S.  Comp.  Stats. 
1916,  §1536,  p.  2511;  Foster's  Federal  Practice,  5th  ed., 
pp.  786,  787;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  432, 
435.) 

Chapter  46,  post,  deals  with  this  "Motion  to  Strike  Out." 

§968.    Reply — When  Required — When  Cause  at  Issue. 

Equity  Rule  31.  "Unless  the  answer  assert  a  set-off  or 
counterclaim,  no  reply  shall  be  required  without  special  order 
of  the  court  or  judge,  but  the  cause  shall  be  deemed  at  issue 
upon  the  filing  of  the  answer,  and  any  new  or  affirmative  mat- 
ter therein  shall  be  deemed  to  be  denied  by  the  plaintiff.  If 
the  answer  include  a  set-off  or  counterclaim,  the  party  against 
whom  it  is  asserted  shall  reply  within  ten  days  after  the  filing 
of  the  answer,  unless  a  longer  time  be  allowed  by  the  court 
or  judge.  If  the  counterclaim  is  one  which  affects  the  rights 
of  other  defendants,  they  or  their  solicitors  shall  be  served 
with  a  copy  of  the  same  within  ten  days  from  the  filing  there- 
of, and 'ten  days  shall  be  accorded  to  such  defendants  for  filing 
a  reply.  In  default  of  a  reply,  a  decree  pro  confesso  on  the 
counterclaim  may  be  entered  as  in  default  of  an  answer  to  the 
bill."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2511.) 

§  969.    Setting  Down  for  Hearing  on  Bill  and  Answer. 

"Where  complainant  sets  a  cause  down  for  hearing  on  bill 
and  answer,  all  allegations  of  the  answer  well  pleaded  are 
admitted,  and  only  questions  of  law  are  presented  for  deter- 
mination." (City  of  Wichita  v.  Wichita  Water  Co.  (8th 
Cir.),  222  Fed.  789,  138  C.  C.  A.  3>37.) 

§  970.  Supplemental  Answer.  Equity  Rale  34,  as  to  supple- 
mental pleading,  applies  as  well  to  answers  as  to  bills.  See 
chapter  32  above. 


413  COUNTERCLAIM  AND  SETOFP.  Ch.  45,  §  980 


CHAPTER  45. 
COUNTERCLAIM  AND  SETOFP. 

BEO. 

980.  Counterclaim  and  Setoff  Under  Second  Paragraph  Equity  Rule  30. 

981.  Illubtration  of  Counterclaim  Growing  Out  of  Same  Transaction — Un- 

fair Competition. 

982.  Setoff  or  Counterclaim  Subject  of  an  Independent  Equity  Suit  Against 

Plaintiff. 

983.  Cross-bill  Abolished. 

984.  Counterclaim   may  not  be   Used  to   Bring  in   New   Parties   nor   for 

Intervention. 

985.  Unliquidated    Damages    Unless    Arising    Out    of    the    Transactions    In- 

volved are  not  Matters  of  Counterclaim. 

986.  Effect  of  Failure  to  Plead  Counterclaim  or  Setoff. 

* 

§980.  Counterclaim  and  Setoff  Under  Second  Paragraph 
Equity  Rule  30. 

2d  Par.  Equity  Rule  30.  "The  answer  must  state  in  short 
and  simple  form  any  counter-claim  arising  out  of  the  trans- 
action which  is  the  subject  matter  of  the  suit,  and  may,  with- 
out cross  bill,  set  out  any  set-off  or  counter-claim  against  the 
plaintiff  which  might  be  the  subject  of  an  independent  suit 
in  equity  against  him,  and  such  set-off  or  counter-claim,  so 
set  up  shall  have  the  same  effect  as  a  cross-suit,  so  as  to  enable 
the  court  to  pronounce  a  final  judgment  in  the  same  suit,  both 
on  the  original  and  cross-claims."  (3  U.  S.  Comp.  Stats. 
1916,  §1536,  p.  2509;  Foster's  Federal  Practice,  5th  ed., 
pp.  624,  628,  630,  681,  683,  686,  695,  697,  703,  716,  729,  10GO; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  283,  285,  362,  375, 
394,  395,  411,  412,  413,  421,  422,  423,  424,  425.  426,  428,  429, 
431,  432,  433,  434,  436,  437,  438,  444,  445,  446,  447,  448,  449, 
451,  452,  453,  454,  455.) 

This  short  paragraph  is  the  only  federal  authority  that  recog- 
nizes counterclaims  and  setoffs,  for  prior  to  the  adoption  of  the 
new  equity  rules  the  only  relief  that  could  be  sought  in  an  answer 
was  the  dismissal  of  the  bill.  Affirmative  matter  could  not  be  set 


§  980,  Ch.  45        MANUAL  OP  FEDERAL  PROCEDURE.  414 

up  in  the  answer,  but  was  required  to  be  pleaded  by  cross-bill. 
The  federal  decisions  relating  to  federal  procedure,  therefore,  do 
not  define  counterclaims  and  setoffs,  the  federal  statutes  do  not 
provide  for  them,  nor  do  the  new  rules  except  that  above  quoted, 
and  Rule  31  providing  for  replies  to  counterclaims  or  setoffs,  and 
Rule  33  for  testing  the  sufficiency  of  same  by  a  motion  to  strike 
out. 

The  rule  designates  two  kinds  of  counterclaims:  (1)  Those 
"arising  out  of  the  transaction  which  is  the  subject  matter  of  the 
suit";  (2)  those  "which  might  be  the  subject  of  an  independent 
suit  in  equity  against"  plaintiff. 

The  second  kind  of  a  counterclaim  is  broad  enough  to  include 
matters  "connected  with  the  subject  of  the  action"  though  not 
necessarily  "arising  out  of  the  transaction  which  is  the  subject 
matter  of  the  suit."  It  is  broader  than  and  includes  that  kind  of 
cross-claim  which  is  known  as  a  "setoff, "  which  term  seems  to  be 
merely  an  alternative  expression  for  "counterclaim." 

There  is  a  large  group  of  states  which  make  a  distinction  be- 
tween setoff  and  counterclaim,  the  setoff  being  used  to  set  out 
independent  or  external  matters  as  the  subject  of  a  cross-claim, 
while  in  another  group  of  states,  the  term  "setoff"  is  not  used, 
but  there  are  two  kinds  of  counterclaims,  the  second  kind  of  which 
correspond  to  the  "setoff"  above  mentioned.  (Pomeroy's  Code 
Remedies,  4th  ed.,  p.  835.) 

That  the  term  "setoff"  is  merely  an  alternative  term  for 
"counterclaim"  is  borne  out  by  the  fact  that  the  rules  always  use 
these  terms  in  the  alternative  with  the  disjunctive  "or."  In  Rule 
30,  "set  out  any  setoff  or  counterclaim,"  and  again,  "and  such 
setoff  or  counterclaim."  In  Rule  31,  "unless  the  answer  asserting 
setoff  or  counterclaim,"  and  again,  "if  the  answer  include  a  set- 
off  or  counterclaim,"  and  the  rule  also  provides  for  a  decree  pro 
confesso  on  the  counterclaim,  but  does  not  mention  such  a  decree 
in  connection  with  setoff. 


415  COUNTERCLAIM   AND  SETOPP.  Cll.  45,  §  <)S1 

§  981.  Illustration  of  Counterclaim  Growing  Out  of  Same 
Transaction — Unfair  Competition. 

"Plaintiff  having  brought  a  suit  in  this  district  thereby  sub- 
jected itself  to  any  counterclaim  or  set-off  which  is  fairly 
within  the  Equity  Rule  above  quoted.  The  counterclaims 
pleaded  in  the  answer  grow  out  of  the  very  same  transactions 
and  matters  covered  by  the  original  bill.  The  three  patents 
referred  to  in  the  answer  upon  expansion  bolts  are  all  along 
the  same  line,  and  the  question  of  unfair  competition  is  inti- 
mately connected  with  the  rights  of  the  respective  parties 
under  these  patents.  These  matters  ought  to  be  all  disposed 
of  in  one  suit,  as  they  relate  to  questions  very  closely  con- 
nected together.  It  is  probable  that  a  decision  may  be  reached 
in  this  district  long  before  it  could  be  had  in  the  Southern 
district  of  New  York  or  in  the  Supreme  Court  of  the  state 
of  New  York,  where  the  unfair  competition  suit  is  pending. 
It  seems  to  me  that  the  ends  of  justice  will  be  promoted  by 
allowing  these  interrogatories  and  counterclaims  to  stand,  and 
have  the  whole  matter  in  the  suit  between  these  parties  de- 
cided at  any  early  date."  (United  States  Expansion  Bolt 
Co.  v.  H.  G.  Kroncke  Hardware  Co.  (W.  D.  Wis.),  216  Fed. 
186,  189.) 

Dismissal  of  Plaintiff's  Bill  on  the  Merits  Does  not  Affect 
Defendant's  Counterclaim  for  Unfair  Competition.  In  Buffalo 
Specialty  Co.  v.  Vancleef  (N.  D.  111.),  217  Fed.  91,  which  is 
quoted  more  fully  in  §  982  below,  the  court  allowed  a  counterclaim 
for  unfair  competition  as  being  the  subject  of  an  independent  suit 
in  equity  against  plaintiff  and  held  that  dismissal  of  the  bill  on 
the  merits  did  not  affect  the  counterclaim. 

Matters  of  unfair  competition  which  do  not  grow  out  of  the 
transaction  which  is  the  subject  matter  of  the  suit  cannot  be  set 
up  as  a  counterclaim  in  a  suit  between  citizens  of  the  same  state, 
because  by  itself  it  would  have  no  federal  ground  of  jurisdiction 
to  support  it. 

In  Electric  Boat  Co.  v.  Lake  Torpedo  Boat  Co.  (D.  N.  J.),  215 
Fed.  377,  the  court  held  that  the  word  "transaction,"  as  so  used, 
embraced  both  the  right  and  the  breach  of  it,  together  with  the 


§  982,  Ch.  45        MANUAL  OF  FEDERAL  PROCEDURE.  416 

various  occurrences  that  make  up  each;  and  hence,  in  a  suit  be- 
tween citizens  of  the  same  state,  where  complainant  sued  for  in- 
fringement of  certain  patents,  defendant  was  not  entitled  to  set 
up  as  a  counterclaim  damages  for  unfair  competition  and  alleged 
malicious  prosecution,  consisting  of  matters  occurring  before  the 
facts  on  which  complainant  relied  occurred  and  independent 
thereof. 

§  982.  Setoff  or  Counterclaim  Subject  of  an  Independent  Equity 
Suit  Against  Plaintiff.  Equity  Rule  30  provides  that  the  answer 
"may,  without  cross-bill,  set  out  any  setoff  or  counterclaim  against 
the  plaintiff  which  might  be  the  subject  of  an  independent  suit  in 
equity  against  him."  Does  this  setoff  or  counterclaim  include 
other  matters  than  that  which  formerly  could  have  been  set  up  by 
cross-bill  ? 

The  cross-bill  under  the  former  practice  has  been  confined  to 
matters  germane  to  the  purposes  of  the  bill.  It  was  required  to 
be  connected  with  it  in  some  way.  The  use  of  the  term  "setoff" 
indicates  separate  unconnected  extrinsic  cause  of  action,  and  would 
seem  to  be  much  broader. 

Since  the  foregoing  portion  of  the  text  was  written  for  the  first 
edition  of  this  manual  many  decisions  have  been  published  adopt- 
ing the  liberal  view  of  the  rule.  On  the  other  hand,  a  large  num- 
ber of  opinions  adopt  a  strict  construction  and  confine  the  counter- 
claim or  setoff  to  matters  germane  to  the  bill. 

In  Electric  Boat  Co.  v.  Lake  Torpedo  Boat  Co.  (D.  N.  J\),  215 
Fed.  377,  the  court  held  that  the  word  "cross-bill"  was  used  as 
synonymous  with  "cross-suit"  and  cross-claim,  so  that  the  limita- 
tion on  what  counterclaims  may  be  set  up  is  not  that  it  must  have 
arisen  out  of  the  transaction  which  is  the  basis  of  the  original  bill, 
but  that  the  subject  matter  is  such  as  might  be  the  subject  of  an 
independent  suit  in  equity  against  the  complainant,  and  hence,  in 
a  suit  for  infringement  of  a  patent,  defendant  may  set  up  in  its 
answer  a  counterclaim  for  infringement  by  complainant  of  a  dif- 


417  COUNTERCLAIM  AND   SETOFF.  Ch.  45,  §  982 

ferent  patent  unrelated  to  the  transaction  and  made  the  basis  of 
complainant's  bill. 

In  Harper  Bros.  v.  Klaw  (S.  D.  N.  Y.),  232  Fed.  609,  611,  Judge 
Hough  said: 

"Prior  to  the  present  rules  in  equity  defendants  would  have 
been  obliged  to  file  a  cross-bill,  if  they  had  sought  to  obtain 
the  relief  here  demanded.  Whether  such  a  cross-bill  as  this 
could  be  sustained  under  Lautz  v.  Gordon  (C.  C.),  28  Fed. 
264,  and  Hogg  v.  Hoag  (C.  C.),  107  Fed.  807,  and  154  Fed. 
1003,  83  C.  C.  A.  677,  is  a  point  on  which  muph  learning 
(probably  useless)  might  be  expended.  It  is  my  opinion  that 
Rule  30  in  equity  has  deliberately  and  wisely  enlarged  tEe 
function  of  a  cross-bill,  now  called  a  counterclaim.  ... 

"It  is  in  my  opinion  now  proper  to  do  what  these  defend- 
ants have  done;  i.  e.,  deny  the  equity  of  plaintiffs'  bill, 
ground  such  denial  on  the  language  of  a  written  document, 
and  serve  a  counterclaim  to  prevent  plaintiffs  from  violating 
said  contract  as  understood  by  defendants.  It  is  proper  to 
do  this,  even  though  it  cannot  be  said  that  the  matter  of  the 
counterclaim,  cross-suit,  or  cross-bill  is  merely  auxiliary  to 
the  original  suit.  It  is  enough  that  in  the  language  of  the 
present  rule  the  counterclaim  shows  something  'which  might 
be  the  subject  of  an  independent  suit  in  equity  against'  the 
plaintiffs."  (Harper  Bros.  v.  Klaw  (S.  D.  N.  Y.),  232  Feel. 
609,  611.) 

In  Buffalo  Specialty  Co.  v.  Vancleef  et  al.  (N.  D.  111.),  217  Fed. 
91,  at  page  93,  the  court  said:  " 

"It  will  be  seen  that  rule  30  requires  defendant  to  set  up 
any  counterclaim  which  arises  out  of  the  transaction  forming 
the  subject  matter  of  the  bill,  but  allows  without  requiring 
him  to  set  up  any  equitable  counterclaim  or  set-off  which 
might  be  the  subject  of  an  independent  suit  by  defendant 
against  plaintiff.  The  language  is  perfectly  clear:  If  defend- 
•  ant  has  an  independent  cause  of  action  in  equity  against  plain- 
tiff, he  may  counterclaim  it.  If  any  corroboration  of  this 
view  were  needed,  it  is  found  in  the  fact  that  the  Supreme 
Court,  in  adopting  the  rule,  omitted  the  last  clause  of  the 
English  rule  which  restricts  counterclaims  to  those  which  can 
be  conveniently  disposed  of  and  those  which  ought  to  be  al- 

Mannal — 27 


§  982,  Cb.  45  MANUAL  OF  FEDERAL  PROCEDURE.  418 

lowed.  Not  only  was  any  set-off  or  counterclaim  which  may 
be  the  subject  of  an  independent  suit  included,  but  an  excep- 
tion was  rejected.  Moreover,  it  has  always  been  held  by  the 
English  courts  that  independent  causes  of  action,  wholly  un- 
connected with  the  claim,  of  the  plaintiff,  may  be  counter- 
claimed.  Birmingham  Estates  Co.  v.  Smith,  13  Ch.  D.  506, 
509.  Nor  is  a  counterclaim  to  be  excluded  because  plaintiff 
is  a  foreigner  who  could  not  be  sued  in  England.  By  invok- 
ing the  jurisdiction,  he  consents  to  be  sued  there  by  counter- 
action, unless  plaintiff  be  a  sovereign,  not  suable  without  its 
consent.  Griendtovan  v.  Hamlyn  &  Co.,  8  L.  T.  R.  231; 
Strousberg  v.  Costa  Rica  Republic,  29  W.  R.  125,  Ch.  App. ; 
Imperial  Japanese  Govt.  v.  Peninsular  &  Oriental  etc.  Nav. 
-Co.  (1895),  A.  C.  644,  P.  C.  Nor  is  the  amount  recoverable 
by  counterclaim  limited  by  the  jurisdiction  of  the  court 
(Amon  v.  Babbett,  22  Q.  B.  D.  543,  Ch.  App.),  unless  objec- 
tion is  made  by  giving  written  notice,  as  required  by  the 
Judiciary  Act  of  1873.  By  adopting  the  English  rule,  its 
construction  in  England  is  adopted,  at  least  to  the  extent  of 
excluding  construction  at  variance  with  plain  and  explicit 
language.  Under  such  circumstances,  the  clear  meaning  of 
the  words  should  not  be  rejected  on  account  of  supposed  in- 
convenience in  applying  the  rule. 

"It  is  said  in  argument  that  it  could  not  have  been  the 
intention  of  the  rule  to  compel  a  nonresident  plaintiff  to  sub- 
mit to  cross-suits  in  districts  foreign  to  his  residence,  and  thus 
run  counter  to  express  statutes,  like  section  51  of  the  Judicial 
Code,  or  the  Act  of  March  3,  1897,  c.  395,  relating  to  place  of 
suit.  Section  51  provides  that  civil  suits,  other  than  those  of 
diverse  citizenship,  shall  only  be  brought  in  the  district  where 
defendant  inhabits,  the  others  only  in  the  district  of  the 
residence  of  either  party.  The  act  of  1897  applies  only  to 
patent  cases,  and  provides  that  the  court  shall  have  jurisdic- 
tion only  in  the  district  where  defendant  inhabits,  or  where 
he  has  committed  infringement  and  has  an  established  place 
of  business.  But  these  acts  do  not  relate  to  the  general  juris- 
diction of  the  district  court,  only  to  the  power  of  the  particu- 
lar court  to  proceed.  They  give  defendant  a  privilege  which 
he  may  waive.  If  the  counterclaim  defendant  (original  plain- 
tiff) raises  the  question  of  jurisdiction  at  the  outset,  and 
succeeds,  defendant  may  have  a  speedy  decision  of  this  ques- 


419  COUNTERCLAIM  AND  SETOFP.  Ch.  45,  §  982 

tion  by  the  Supreme  Court.  Whatever  the  decision  may  be 
affects  the  scope  of  rule  30,  not  its  construction. 

"It  is  true  that  the  weight  of  authority  in  the  construc- 
tion of  the  new  rule  limits  its  scope  to  counterclaims  which 
might  formerly  have  been  made  the  subject  of  a  cross-bill. 
Terry  Steam  Turbine  Co.  v.  B.  F.  Sturtevant  Co.  (D.  C.), 
204  Fed.  103;  Williams  Patent  Crusher  etc.  Co.  v.  Kinsey 
Mfg.  Co.  (D.  C.),  205  Fed.  375;  Adamson  v.  Shaler  (D.  C.), 
208  Fed.  566;  Klauder-Weldon  Dyeing  Mach.  Co.  v.  Giles 
(D.  C.),  212  Fed.  452;  Sydney  v.  Mugford  Printing  etc.  Co. 
(D.  C.),  214  Fed.  841.  To  the  contrary  are  Marconi  Wire- 
less Tel.  Co.  v.  National  Elec.  Signaling  Co.  (D.  C.),  206 
Fed.  295;  Salt's  Textile  Mfg.  Co.  v.  Tingue  Mfg.  Co.  (D.  C.), 
208  Fed.  156;  Vacuum  Cleaner  Co.  v.  American  Rotary 
Valve  Co.  (D.  C.),  208  Fed.  419;  and  Electric  Boat  Co.  v. 
Lake  Torpedo  Boat  Co.,  215  Fed.  377.  The  cases  supporting 
a  limited  application  of  the  rule  proceed  upon  the  theory  that 
it  was  not  intended  to  change  the  substantive  law  providing 
what  could  be  treated  as  a  set-off  or  -counterclaim  prior  to 
the  rule  (Judge  Thomas,  214  Fed.  841),  and  that  the  words 
'shall  have  the  same  effect  as  a  cross-suit'  mean  to  limit  the 
counterclaim  to  what  might  have  been  brought  in  by  cross- 
bill. These  words  are  adopted  from  the  English  rule,  except 
that  'cross-suit'  is  there  'cross-action.'  Why  not  give  them 
the  settled  construction  of  the  English  courts?  As  Judge 
Chatfield  says  in  the  Marconia  case:  'Here  we  have  a  delib- 
erate use  of  new  terms  covering  any  "independent  suit  in 
equity"  to  have  the  result  of  a  "cross-suit,"  and  yet  to  be 
pleaded  "without  cross-bill." 

"The  contrary  view  is  strongly  argued  by  Judge  Dodge  in 
the  Terry  Case,  Judge  Geiger  in  the  Adamson  Case,  and 
Judge  Thomas  in  the  Sydney  Case.  But  the  new  equity  rules 
were  conceived  in  a  most  liberal  spirit,  and  I  think  the  one 
in  question  should  be  given  its  manifest  meaning,  so  as  to 
allow  all  mutual  claims  in  equity  to  be  set  off  or  opposed,  as 
is  done  under  the  English  practice.  I  have  examined  many 
English  decisions  under  order  19,  and  am  convinced  that  the 
rule  has  there  worked  justly.  It  has  been  given  a  broad  and 
liberal  construction  but  has  not  been  extended  (as  its  terms 
prohibit)  to  cases  so  incongruous  as  to  be  incapable  of  trial 
with  the  original  suit.  Bartholomew  v.  Rawlings,  W.  N.  56 ; 
Huggons  v.  Tweed,  10  Ch.  D.  359;  Compton  v.  Preston,  21 


§  983,  Ch.  45         MANUAL  OF  FEDERAL  PROCEDURE.  420 

Ch.  D.  138.  Such  an  exception  may  also  properly  be  applied 
under  rule  30,  since  the  rule  relates  only  to  equitable  causes 
of  action.  If  it  would  be  inequitable  to  subject  the  plaintiff 
to  the  defense  of  an  incongruous  cross-action,  surely  the  court 
would  decline  jurisdiction.  I  am  convinced,  therefore,  that 
the  dismissal  of  the  bill  had  no  effect  on  the  counterclaim  for 
unfair  competition.  The  Electric  Boat  Company  Case  con- 
tains an  able  discussion  of  the  construction  of  the  words  of 
the  rule." 

§  983.  Cross-bill  Abolished.  The  only  reference  in  the  index 
of  the  equity  rules  to  the  cross-bill  reads  as  follows:  "Cross-bill 
counterclaim  to  be  stated  in  answer,  and  not  by."  The  only 
reference  in  the  rules  to  the  cross-bill  is  in  Equity  Rule  30,  pro- 
viding that  the  defendant  "may,  mthout  cross-bill,  set  out  any 
setoff  or  counterclaim  against  the  plaintiff  which  might  be  the 
subject  of  an  independent  suit  in  equity  against  him."  The  fed- 
eral statutes  and  the  new  equity  rules  do  not  provide  for  the 
procedure  in  the  event  of  the  filing  of  a  cross-bill,  and  the  evident 
intent  is  that  a  counterclaim  or  setoff  should  be  used,  instead  of 
cross-bill. 

Since  the  above  was  first  written  the  court  held  in  the  case  of 
In  re  Grand  Union  Co.  (2d  Cir.),  219  Fed.  353,  135  C.  C.  A.  237, 
that  Rule  30  obviates  the  necessity  of  filing  a  cross-bill,  and  affirm- 
ative relief  may  now  be  asked  in  the  answer. 

The  new  counterclaim  and  setoff  seem  to  cover  all  or  almost 
all  which  could  have  been  pleaded  by  the  cross-bill  under  the 
former  practice.  The  purposes  of  the  cross-bill  were  as  follows : 

1.  Affirmative  relief.  As  the  only  prayer  of  the  answer  under 
the  old  practice  was  for  dismissal  of  the  bill,  the  cross-bill  was 
the  only  method  of  obtaining  affirmative  relief.  The  new  rule 
provides  that  the  "setoff  or  counterclaim  so  set  up  shall  have  the 
same  effect  as  a  cross-suit,  so  as  to  enable  the  court  to  pronounce 
a  final  judgment  in  the  same  suit  both  on  the  original  and  cross- 
claims."  There  can  be  no  doubt  but  that  under  Rule  30,  the 
reformation  of  an  instrument  sued  upon  may  be  sought  by  the 
defendant  on  the  ground  of  mistake  or  fraud,  or  that  the  defend- 


421  COUNTERCLAIM  AND  SETOFP.  Ch.  45,  §  983 

ant  could  set  up  usury,  or  pray  that  an  agreement  be  surrendered 
which  is  sought  to  be  specifically  enforced.  In  fact,  these  are 
matters  arising  out  of  the  transaction  which  is  the  subject  matter 
of  the  suit,  and  must  be  set  out  in  the  answer,  and  not  by  cross-bill. 

2.  Discovery.     The  cross-bill  is  no  longer  necessary  for  discov- 
ery in  aid  of  an  answer,  as  Equity  Rule  58  now  provides  for  the 
filing   of  interrogatories   in   writing  for  the   discovery,   by  the 
opposite  party  or  parties,  of  facts  and  documents  material  to  the 
support  or  the  defense  of  the  cause. 

This  was  also  true  under  the  old  rules,  but  the  old  rules  by 
old  Equity  Rule  72  recognized  the  right  of  defendant  to  obtain 
discovery  by  cross-bill  by  requiring  an  answer  to  the  original  bill 
before  the  plaintiff  was  compelled  to  answer  the  cross-bill.  Old 
Equity  Rule  72  is  now  abolished,  and  there  is  no  recognition  of 
the  cross-bill  in  the  new  rules  except  the  permission  to  set  up 
matters  without  a  cross-bill. 

3.  To  set  up  new  matter  arising  after  issue  joined.    Under  the 
old  practice  it  was  not  possible  to  set  up  new  matter  by  a  supple- 
mental answer.     Old  Rule  46  as  to  supplement  pleading  referred 
to  the  bill  only.     Therefore  it  was  necessary  to  set  up  this  new 
matter  by  cross-bill. 

This  is  no  longer  necessary,  because  the  new  Equity  Rule  34 
provides  for  a  supplemental  answer  as  well  as  a  supplemental  bill. 

Equity  Rule  34.  "Upon  application  of  either  party  the 
court  or  judge  may,  upon  reasonable  notice  and  such  terms  as 
are  just,  permit  him  to  file  and  serve  a  supplemental  plead- 
ing, alleging  material  facts  occurring  after  his  former  plead- 
ing, or  of  which  he  was  ignorant  when  it  was  made,  including 
the  judgment  or  decree  of  a  competent  court  rendered  after 
the  commencement  of  the  suit  determining  the  matters  in  con- 
troversy or  a  part  thereof."  (3  U.  S.  Comp.  Stats.  1916, 
§  1536,  p.  2512;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  366,  368,  370,  371,  376,  438,  439.) 

4.  Means  of  defense.     The  cross-bill  is  no  longer  necessary  to 
set  up  matters  which  could  not  be  pleaded  in  the  answer,  because 


§  983,  Ch.  45          MANUAL  OP  FEDERAL  PROCEDURE.  422 

the  answer  is  now  of  such  a  broad  character  that  defensive  matters 
which  were  formerly  barred  may  now  be  included  under  the  pro- 
vision of  Equity  Rule  30,  which  reads:  "The  answer  may  state 
as  many  defenses,  in  the  alternative,  regardless  of  consistency,  as 
the  defendant  deems  essential  to  his  defense. ' '  Hence,  a  discharge 
in  bankruptcy;  an  agreement  or  conveyance,  or  matters  purely 
legal,  could  be  set  up  in  an  original  or  a  supplemental  answer. 

5.  To  settle  conflicting  claims  between  the  defendants.  The 
new  rule  provides  for  two  distinct  kinds  of  counterclaims:  (1) 
"Any  counterclaim  arising  out  of  the  transaction  which  is  the 
subject  matter  of  the  suit";  (2)  "any  setoff  or  counterclaim 
against  the  plaintiff  which  might  be  the  subject  of  an  independent 
suit  in  equity  against  him." 

The  second  kind  of  counterclaim  would  not  cover  conflicting 
claims  among  the  defendants  themselves,  as  the  rule  specifically 
states  that  the  setoff  or  counterclaim  is  "against  the  plaintiff." 
Equity  ilule  31  provides:  "If  the  answer  includes  a  set-off  or 
counterclaim,  the  party  against  whom  it  is  asserted  shall  reply 
within  ten  (10)  days  after  the  filing  of  the  answer,  unless  a 
longer  time  be  allowed  by  the  court  or  judge."  The  party  men- 
tioned is  evidently  the  plaintiff,  as  other  defendants  ought  to  be 
given  notice  of  a  counterclaim  affecting  them  before  being  re- 
quired to  reply  to  same. 

The  first  kind  of  counterclaim  mentioned,  one,  "arising  out  of 
the  transaction  which  is  the  subject  matter  of  the  suit,"  evidently 
may  affect  the  rights  of  others  than  the  plaintiff,  for  Equity  Rule 
31  provides  with  respect  to  this  class  of  counterclaim,  "if  the 
counterclaim  is  one  which  affects  the  rights  of  other  defendants, 
they  or  their  solicitors  shall  be  served  with  a  copy  of  the  same 
within  ten  (10)  days  from  the  filing  thereof,  and  ten  (10)  days, 
shall  be  accorded  to  such  defendant  for  filing  a  reply." 

It  would  therefore  seem  that  conflicting  claims  between  the 
defendants  arising  out  of  the  transaction  which  i$  the  subject  mat- 
ter of  the  suit  could  be  litigated  by  counterclaim. 


423  COUNTEfeCLAm  AND  SETOPP.  Cb,  45,  §  984 

6.  For  a  complete  determination  of  all  matters  affected  by  the 
bill.  That  this  is  the  intent  of  the  rule  as  is  indicated  by  the 
language  that  "such  set-off  or  counterclaim,  so  set  up,  sliall  have 
the  same  effect  as  a  cross  suit,  so  as  to  enable  the  court  to  pro- 
nounce a  final  judgment  in  the  same  suit  both  on  the-  original  and 
cross  claims." 

§  984.  Counterclaim  may  not  be  Used  to  Bring  in  New  Parties 
nor  for  Intervention.  An  injunction  was  sought  against  owner 
of  patent  to  restrain  him  from  terrorizing  the  trade  through  a 
succession  of  threats,  etc.  Parties  interested  in  the  patent  sought 
to  intervene  to  file  counterclaims  for  infringement  of  the  patent, 
being  the  infringement  asserted  by  defendant  in  its  conduct,  which 
is  the  subject  matter  of  the  suit. 

The  court  held  new  Equity  Rules  30  and  37  do  not  permit  one 
who  is  not  a  necessary  or  proper  party  to  the  determination  of 
the  issues  in  the  case  to  intervene  by  counterclaim.  (Atlas  Under- 
wear Co.  v.  Cooper  Underwear  Co.,  210  Fed.  347,  355.) 

In  United  States  v.  Woods  (8th  Cir.),  223  Fed.  316,  138  C.  C.  A. 
578,  the  court  held  that  Equity  Rule  30,  providing  that  the  answer 
may,  without  cross-bill,  set  out  any  setoff  or  counterclaim  against 
the  plaintiff  which  might  be  the  subject  of  an  independent  suit 
in  equity  against  him,  does  not  authorize  the  filing  of  a  cross-bill 
in  a  suit  by  the  government  on  behalf  of  the  Creek  Indians  to 
cancel  conveyances  of  allotted  lands,  which  bill  prayed  that  in- 
dividuals claiming  an  interest  in  the  lands  adverse  to  defendant 
be  joined  as  parties  and  required  to  litigate  their  claims. 

(Page  317.)  "The  general  rule  is  that  new  parties  cannot 
be  introduced  into  a  cause  by  a  cross-bill;  that  only  parties 
to  the  original  bill,  plaintiffs  or  defendants,  can  be  made 
parties  to  a  cross-bill.  If  the  plaintiff  desires  to  make  new 
parties,  he  amends  his  bill  and  in  that  way  introduces  them. 
If  the  defendant  requires  the  presence  of  parties  other  than 
those  named  in  the  original  bill,  he  complains  of  a  nonjoinder 
by  answer,  and  plaintiff  is  then  forced  to  amend  or  the  bill 
may  be  dismissed.  Such  is  the  general  rule  in  equity." 


§§  985-986,  Ch.  45     MANUAL  OF  FEDERAL  PROCEDURE.  424 

§  985.  Unliquidated  Damages  Unless  Arising  Out  of  the 
Transaction  Involved  are  not  Matters  of  Counterclaim.  In 
Williams  v.  Adler  Goldman  Commission  Co.  (8th  Cir.),  227  Fed. 
374,  142  C.  C.  A.  70,  it  was  sought  to  interpose  counterclaims  for 
unliquidated,  damages  in  a  suit  by  creditors  to  set  aside  a  convey- 
ance as  fraudulent.  The  court  said: 

(Page  378.)  "The  great  per  cent  in  number  and  amount 
of  items  set  up  in  the  counterclaim  are  for  unliquidated  dam- 
ages and  could  not  'be  the  subject  of  an  independent  suit  in 
equity,'  and  none  of  the  items  arise  'out  of  the  transaction 
which  is  the  subject  matter  of  the  suit.'  Equity  Rule  30." 

§986.    Effect  of    Failure  to  Plead    Counterclaim  or    Setoff. 

The  rule  provides  that  "the  answer  must  state  .  .  .  any  counter- 
claim arising  out  of  the  transaction  which  is  the  subject  matter 
of  the  suit."  This  would  seem  to  preclude  setting  up  such  matter 
thereafter,  as  under  the  rule  stated  in  this  form,  the  issues  would 
necessarily  be  involved  and  therefore  res  adjudicata. 

The  text  is  now  supported  by  Portland  Wood  Pipe  Co.  v.  Slick 
Bros.  Const.  Co.  (D.  Idaho),  222  Fed.  528. 

In  that  case  the  court  held  that  in  a  suit  by  a  nonresident  of 
the  district  to  foreclose  a  mechanic's  lien,  in  which  the  contractor 
and  a  subcontractor,  resident  citizens  of  the  district,  are  made 
defendants,  and  the  subcontractor  by  a  cross-bill  asserts  a  lien 
upon  the  property,  the  court  has  jurisdiction  over  a  counterclaim 
by  the  contractor  against  the  subcontractor  for  moneys  advanced 
and  supplies  furnished  the  subcontractor  on  account  during  the 
progress  of,  and  for  use  in  carrying  on,  the  work,  though  the 
amount  of  the  counterclaim  exceeds  the  amount  due  the  subcon- 
tractor, and  has  jurisdiction  to  render  judgment  against  the  sub- 
contractor for  the  balance,  under  the  rule  that,  where  the  court  has 
jurisdiction  of  the  controversy  exhibited  by  the  complaint,  it  may 
assume  jurisdiction  to  adjudicate  incidental  issues  raised  by  cross- 
bills between  defendants,  regardless  of  citizenship  or  the  amount 
in  dispute,  especially  in  view  of  Equity  Rule  30,  providing  that 
the  answer  must  state  in  short  and  simple  form  any  counterclaim 


425  COUNTERCLAIM  AND  SETOFF.  Ch.  45,  §  986 

arising  out  of  the  transaction  which  is  the  subject  matter  of  the 
suit,  and  Rev.  Codes  Idaho,  section  4185,  providing,  relative  to 
counterclaims  arising  out  of  the  transaction  set  forth  in  the  com- 
plaint as  the  foundation  of  plaintiff's  claim,  that  if  defendant  omit 
to  set  up  such  a  counterclaim,  he  cannot  afterward  maintain  an 
action  against  the  plaintiff  therefor. 

The  rule  provides  also  that  the  "answer  may^  without  cross-bill, 
set  out  any  setoffs  or  counterclaims  against  the  plaintiff  which 
might  be  the  subject  of  an  independent  suit  in  equity  against 
him."  The  use  of  the  verb  in  the  permissive  form  would  indi- 
cate that  as  to  such  matters  the  defendant  would  not  afterward 
be  barred  from  proceeding  by  an  independent  suit  in  equity  on 
his  claim.  It  has  been  generally  held  that,  in  the  absence  of  ex- 
press statutory  provisions  to  the  contrary,  the  failure  to  plead 
these  matters  does  not  bar  them,  and  no  such  effect  is  given  by 
the  statutes  authorizing  the  counterclaim.  In  code  states  the 
defendant  may  elect  to  set  up  his  cross-demand  as  a  counterclaim, 
or  may  not  do  so,  but  may  set  up  and  maintain  a  separate  action 
upon  it.  (Pomeroy's  Code  Remedies,  p.  938,  eases  cited.) 


§§  1000-1001,  Ch.  46      MANUAL  OF  FEDERAL  PROCEDURE.  426 


CHAPTER  46. 

MOTION  TO  STRIKE  OUT. 

SEO. 

1000.  Equity  Rule  32 — Motion  to  Strike  Out — Five  Day  Notice. 

1001.  Illustrative  Case  of  Motion  to  Strike  Out  Defense  as  Insufficient. 

1002.  Form  of  Motion  to  Strike  Out. 

§1000.  Equity  Rule  33— Motion  to  Strike  Out^-Five  Day 
Notice. 

Equity  Rule  33.  "(Testing  sufficiency  of  defense.}  Ex- 
ceptions for  insufficiency  of  an  answer  are  abolished.  But  if 
an  answer  set  up  an  affirmative  defense,  setoff  or  counter- 
claim, the  plaintiff  may,  upon  five  days'  notice,  or  such  fur- 
ther time  as  the  court  may  allow,  test  the  sufficiency  of  the 
same  by  motion  to  strike  out.  If  found  insufficient  but 
amendable  the  court  may  allow  an  amendment  upon  terms,  or 
strike  out  the  matter."  (3  U.  S.  Comp.  Stats.  1916,  §  1536, 
p.  2511;  Marconi  Wireless  Tel.  Co.  v.  National  Electric  Sig- 
naling Co.,  206  Fed.  295,  301;  Sydney  v.  Mugford  Printing 
etc.  Co.,  214  Fed.  841;  Shera  v.  Merchants'  Life  Ins.  Co.,  237 
Fed.  484,  485.) 

This  is  a  new  rule  superseding  old  rules  61,  63,  64. 

§  1001.  Illustrative  Case  of  Motion  to  Strike  Out  Defense  as 
Insufficient.  The  bill  was  brought  to  foreclose  builder's  or 
mechanic's  statutory  lien.  The  owner's  amended  answer  set  up 
claim  of  noncompliance  with  Florida  statute  as  to  foreign  cor- 
poration filing  its  articles  of  incorporation.  After  the  evidence 
closed  the  owner  filed  amendment  to  show  noncompliance  until 
the  date  of  the  contract  and  commencement  of  the  work.  Plain- 
tiff submitted  motion  to  strike  out.  Motion  denied  and  bill  dis- 
missed. On  appeal  the  case  was  reversed,  the  court  stating: 

"Before  the  allowance  of  the  last-mentioned  amendment, 
the  only  allegation  of  the  owner's  answer  as  to  a  noncom- 
pliance by  the  plaintiff  with  the  Florida  foreign  corporation 


427  MOTION    TO    STRIKE   OUT.  Ch.  46,  §  1002 

statute  was  one  which  was  not  supported  by  the  evidence 
adduced.  Without  further  pleading  by  the  plaintiff,  that 
allegation  was  to  be  deemed  to  be  denied  by  it.  Equity 
Rule  31  (198  Fed.  xxvii,  115  C.  C.  A.  xxvii).  .  .  .  The  aver- 
ments of  the  last-mentioned  amendment  to  the  answer  failed 
to  show  that  the  plaintiff  was  under  a  disability  to  acquire 
contractual  rights  throughout  the  period  in  which  the  aver- 
ments of  the  bill  and  the  evidence  supporting  them  showed 
that  such  rights  were  accruing  to  it.  In  other  words,  the 
averments  of  that  amendment  did  not  show  the  existence 
of  a  state  of  facts  constituting  a  defense  to  the  bill  as  a 
whole.  The  sufficiency  of  the  defense  set  up  by  that  plead- 
ing was  properly  tested  by  a  motion  to  strike  out.  Equity 
Rule  33."  (Turner  Construction  Co.  v.  Union  Terminal 
Co.  (5th  Cir.),  229  Fed.  702,  704,  705,  144  C.  C.  A.  112.) 

§  1002.    Form  of  Motion  to  Strike  Out. 

[Title  of  Court.] 

MOTION  TO  STRIKE  OUT  COUNTERCLAIM  AS  INSUTFICIENT. 
[Title  of  Case.] 

Plaintiff  moves  to  strike  out  defendant's  counterclaim  on  the  ground  that 
same  does  not  state  facts  sufficient  to  constitute  a  counterclaim  against  this 
plaintiff  under  Equity  Rule  30. 

John    Brown, 
Solicitor  for  Plaintiff. 


' 


§§  1010-1011,  Ch.  47      MANUAL  OF  FEDERAL.  PROCEDURE.  428 

CHAPTER  47. 

REPLY. 

SEO. 

1010.  Equity  Rule  31 — Reply  to  Setoff  or  Counterclaim — Issue. 

1011.  The  Scope  of  the  Reply. 

§1010.  Equity  Rule  31— Reply  to  Setoff  or  Counterclaim- 
Issue. 

Equity  Rule  31.  "  (Reply — When  required — When  cause 
at  issue.)  Unless  the  answer  assert  a  set-off  or  counterclaim, 
no  reply  shall  be  required  without  special  order  of  the  court 
or  judge,  but  the  cause  shall  be  deemed  at  issue  upon  the  filing 
of  the  answer,  and  any  new  or  affirmative  matter  therein  shall 
be  deemed  to  be  denied  by  the  plaintiff.  If  the  answer  include 
a  set-off  or  counterclaim  the  party  against  whom  it  is  asserted 
shall  reply  within  ten  days  after  the  filing  of  the  answer,  un- 
less a  longer  time  be  allowed  by  the  court  or  judge.  If  the 
counterclaim  is  one  which  affects  the  rights  of  other  defend- 
ants they  or  their  solicitors  shall  be  served  with  a  copy  of  same 
within  10  days  from  the  filing  thereof,  and  ten  days  shall  be 
accorded  such  defendants  for  filing  a  reply.  In  default  of  a 
reply,  a  decree  pro  confesso  on  the  counterclaim  may  be  en- 
tered as  in  default  of  an  answer  to  the  bill."  (3  U.  S.  Comp. 
Stats.  1916,  §1536,  p.  2511;  Foster's  Federal  Practice,  5th 
ed.,  pp.  615,  624,  695,  698;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  pp.  355,  386,  415,  428,  440,  445,  451,  491.) 

§1011.  The  Scope  of  the  Reply.  Rule  31,  quoted  §1010 
above,  does  not  require  a  reply  without  special  order  of  .the  court 
or  judge,  unless  the  answer  assert  a  setoff  or  counterclaim. 

Necessarily  the  ''reply"  contemplated  by  this  rule  transcends 
the  scope  of  the  "replication"  used  when  the  defendant's  plead- 
ing was  limited  to  the  controversy  forming  the  basis  of  the  plain- 
tiff's complaint,  and  includes  that  which  would  be  an  answer  and 
counterclaim  under  Rule  30.  (Electric  Boat  Co.  v.  Lake  Torpedo 
Boat  Co.,  215^Fed.  377.) 

Matter  of  confession  and  avoidance  does  not  require  a  reply. 
(Shera  v.  Merchants'  Life  Ins.  Co.,  237  Fed.  484,  486.) 


429  DEPOSITIONS.  Ch.  48,  §  1020 


CHAPTER  48. 

DEPOSITIONS. 

no. 

1020.  Depositions— Rules  47,  54  and  55. 

1021.  Not  "Good  and  Exceptional  Cause"  to  Avoid  Several  Days  in  Trial. 

1022.  Time   for  Taking  Depositions — Rule  47   Governs   Unless  Conflicting 

With  §  863,  Eev.  Stats.,  et  seq. 

1023.  Extending  Time. 

§  1020.    Depositions— Rules  47,  54  and  55. 

Equity  Rule  47.  "(Depositions — To  be  taken  in  excep- 
tional instances.)  The  court,  upon  application  of  either 
party,  when  allowed  by  statute,  or  for  good  and  exceptional 
cause  for  departing  from  the  general  .rule,  to  be  shown  by 
affidavit,  may  permit  the  deposition  of  named  witnesses,  to  be 
used  before  the  court  or  upon  a  reference  to  a  master,  to  be 
taken  before  an  examiner  or  other  named  officer,  upon  the 
notice  and  terms  specified  in  the  order.  All  depositions  taken 
under  a  statute,  or  under  any  such  order  of  the  court,  shall 
be  taken  and  filed  as  follows,  unless  otherwise  ordered  by  the 
court  or  judge  for  good  cause  shown:  Those  of  the  plaintiff 
within  sixty  days  from  the  time  the  cause  is  at  issue ;  those 
of  the  defendant  within  thirty  days  from  the  expiration  of 
the  time  for  the  filing  of  plaintiff's  depositions;  and  rebutting 
depositions  by  either  party  within  twenty  days  after  the  time 
for  taking  original  .depositions  expires." 

Equity  Rule  54.  "  (Deposition  under  Rev.  Stats.,  §§  863, 
865,  866,  867 — Cross-examination.)  After  a  cause  is  at  issue, 
depositions  may  be  taken  as  provided  by  §§  863,  865,  866  and 
867,  Revised  Statutes.  But  if  in  any  case  no  notice  has  been 
given  the  opposite  party  of  the  time  and  place  of  taking  the 
deposition,  he  shall,  upon  application  and  notice,  be  entitled 
to  have  the  witness  examined  orally  before  the  court,  or  to  a 
cross-examination  before  an  examiner  or  like  officer,  or  a  new 
deposition  taken  with  notice,  as  the  court  or  judge  under  all 
the  circumstances  shall  order." 


§§  1021-1022,  Ch.  48     MANUAL  OP  FEDERAL  PROCEDURE.  430 

Equity  Rule  55.  "  (Deposition  deemed  published  when 
fled.}  Upon  the  filing  of  any  deposition  or  affidavit  taken 
under  these  rules  or  any  statute,  it  shall  be  deemed  published, 
unless  otherwise  ordered  by  the  court." 

§  1021.  Not  "Good  and  Exceptional  Cause"  to  Avoid  Several 
Days  in  Trial.  "Good  and  exceptional  cause  for  departing  from 
the  general  rule"  requiring  the  testimony  of  witnesses  to  be  taken 
orally  in  open  court  is  not  shown  merely  by  the  fact  that  a  trial 
will  probably  occupy  several  days.  (North  v.  Herrick,  203  Fed. 
591.) 

§  1022.  Time  for  Taking  Depositions — Rule  47  Governs  Unless 
Conflicting  With  §  863,  Rev.  Stats.,  et  seq.  Although  it  is  held 
that  Rule  47  was  not  intended  to  vary  or  limit  §  863,  Rev.  Stats. 
(Iowa  Washing  Machine  Co.  v.  Montgomery  Ward  &  Co.  (S.  D. 
N.  Y.),  227  Fed.  1007),  and  the  ruling  in  Victor  Talking  Machine 
Co.  v.  Sonora  Phonograph  Corp.,  quoted  below,  is  not  followed 
in  Iowa  Washing  Machine  Co.  v.  Montgomery  Ward  &  Co.  cited 
just  above  and  by  other  courts,  it  is  well  to  note  the  reasoning 
and  opinion  in  Victor  Talking  Mach.  Co.  v.  Sonora  Phonograph 
Corp.  (S.  D.  N.  Y.),  221  Fed.  676,  677,  678,  as  follows: 

"These  rules,  with  others,  were  designed  to  expedite  the 
progress  of  suits  in  equity.  After  the  lapse  of  time  under  the 
rules,  the  cause  is  automatically  placed  on  the  calendar,  and 
any  departure  from  the  automatic  action  of  the  rules  in  var- 
ious respects  may  be  had  only  when  'otherwise  ordered  by 
the  court  or  judge  for  good  cause  shown. '  If,  therefore,  after 
the  time  expiration,  it  becomes  necessary  to  take  depositions, 
there  is  no  difficulty  in  making  a  proper  presentation  to  the 
court  or  judge  and  obtaining  an  appropriate  order. 

"It  is  urged,  however,  that  Rule  47  cannot  limit  the  time 
of  taking  depositions,  in  view  of  section  863  of  the  United 
States  Rev.  Stats.,  and  that,  where  the  witness  is  one  within 
the  purview  of  that  section,  a  deposition  may  be  taken  after 
the  time  prescribed  in  Rule  47.  But  Rule  47  refers,  among 
other  things,  to  'all  depositions  taken  under  a  statute,'  and, 
as  it  must  be  assumed  that  the  Supreme  Court  was  construing 


4,11  DEPOSITIONS.  Ch.  48,  §  1023 

(among  others)  section  863,  the  validity  of  the  rule  is,  of 
course,  conclusive  upon  this  court.  I  see  nothing  in  Rule  54 
inconsistent  with  Rule  47 ;  nor  do  I  read  Henning  v.  Boyle 
(C.  C.),  112  Fed.  397,  and  In  re  National  Equipment  Co.,  195 
Fed.  488,  115  C.  C.  A.  398  (decided  prior  to  February  1, 
1913),  as  contrary  to  the  conclusion  now  stated. 

"In  the  suits  at  bar,  plaintiff  gave  notice  of  the  taking  of 
depositions  on  December  20,  1913,  some  six  months  after  issue 
was  joined.  Neither  Rule  47  nor  Rule  1  of  this  court  was 
complied  with.  Defendant  promptly  and  clearly  notified 
plaintiff  that  it  objected  to  this  taking  of  testimony  by  deposi- 
tion, that  its  counsel  would  not  attend,  and  that  it  would 
move,  at  the  trial,  to  strike  out  the  testimony  thus  taken  and 
for  further  germane  relief.  Nevertheless  plaintiff  proceeded 
and,  in  doing  so,  it  took  chances.  There  was  nothing  further 
which  defendant  was  called  upon  to  do.  It  might  have 
waited  until  the  trial,  but,  instead,  has  moved  now,  and,  even 
if  laches  were  an  answer  (which  I  doubt),  there  is  none  in 
this  case. 

"If  I  have  construed  the  rule  correctly,  I  may  add  that,  on 
the  facts  in  this  case,  I  doubt  the  power  to  make  an  order 
nunc  pro  tune.  If  the  matter  is  one  of  discretion,  I  think  it 
would  be  an  abuse  of  discretion  to  allow,  over  objection,  an 
order  nunc  pro  tune  which  would  abrogate  the  rule,  upon  the 
observance  of  which  defendant  had  the  right  to  rely. 

The  motion  to  suppress  the  fact  depositions  is  granted." 

§  1023.  Extending  Time.  If,  after  the  time  expiration,  it  be- 
comes necessary  to  take  depositions,  there  is  no  difficulty,  on 
making  a  proper  presentation  to  the  court  or  judge,  in  obtaining 
an  appropriate  order.  (Victor  Talking  Mach.  Co.  v.  Sonora 
Phonograph  Corp.,  221  Fed.  676.) 


§§  1030-1031,  Ch.  49     MANUAL  OF  FEDERAL  PROCEDURE.  432 


CHAPTER  49. 

SETTING   FOB   TRIAL— CALENDAR. 
SEO. 

1030.  Rule  56  as  to  Case  Going  on  Trial  Calendar  and  Restricting  Taking 

Depositions  Thereafter. 

1031.  Sufficiency    of   Showing   of    Compliance    With    the    Rule    Restricting 

Depositions  After  Case  has  Gone  on  Trial  Calendar. 

1032.  Equity   Rule  57   Restricting  Allowance   of   Continuances   After  Case 

on  Trial  Calendar. 

1033.  Case   is   not   Dropped   from   the    Calendar   After   Hearing  but   Court 

may  Render  Decree  After  Term. 

§  1030.  Rule  56  as  to  Case  Going  on  Trial  Calendar  and 
Restricting  Taking  Depositions  Thereafter. 

Equity  Rule  56.  "(On  expiration  of  time  for  depositions, 
case  goes  on  trial  calendar.}  After  the  time  has  elapsed  for 
taking  and  filing  depositions  under  these  rules,  the  case  shall 
be  placed  on  the  trial  calendar.  Thereafter  no  further  tes- 
timony by  deposition  shall  be  taken  except  for  some  strong 
reason  shown  by  affidavit.  In  every  such  application  the  rea- 
son why  the  testimony  of  the  witness  cannot  be  had  orally 
on  the  trial,  and  why  his  deposition  has  not  been  before  taken, 
shall  be  set  forth,  together  with  the  testimony  which  it  is 
expected  the  witness  will  give." 

§  1031.  Sufficiency  of  Showing  of  Compliance  With  the  Rule 
Restricting  Depositions  After  Case  has  Gone  on  Trial  Calendar. 
In  United  Lace  &  Braid  Mfg.  Co.  y.  Barthels  Mfg.  Co.  (E.  D. 
N.  Y.),  217  Fed.  175,  176,  the  court  said: 

"While  these  papers  do  not  set  forth  in  detail  entirely 
satisfactory  reasons,  showing  inability  to  produce  upon  the 
trial  the  witnesses  named,  or  others  who  would  testify  in  the 
same  way  upon  the  same  matters,  nor  just  what  evidence  each 
witness  will  give  with  respect  to  the  issues  in  the  case,  and 
while  therefore  the  rule  is  not  yet  fully  met,  in  the  way  that 
the  usual  application  to  examine  a  particular  witness  would 


433  SETTING  FOR  TRIAL— CALENDAR.       Ch.  49,  §§  1032-1033 

be  required  to  be  presented,  nevertheless  it  would  appear  that 
the  motion  should  be  granted  to  the  extent  of  allowing  the 
plaintiff  to  obtain  the  depositions,  in  the  form  of  direct  ex- 
amination, and  to  give  opportunity  at  the  same  hearing  for 
cross-examination  of  any  of  the  witnesses  named,  in  Provi- 
dence and  Boston,  whose  actual  presence  at  the  trial  shall  not 
be  of  any  benefit  at  the  hearing  of  the  case.  In  such  a  mat- 
ter as  the  present,  there  would  seem  to  be  no  necessity  for 
requiring  strict  compliance  with  the  rule,  nor  in  preventing 
the  preparation  of  depositions  for  submission  upon  the  trial, 
when  all  questions  and  objections  as  to  the  materiality  and 
relevancy  of  the  testimony,  and  as  to  the  competency  of  using 
a  deposition  instead  of  requiring  the  actual  presence  of  the 
witnesses  to  give  oral  testimony,  can  be  raised.  All  such 
rights  will  be  preserved  to  the  defendant,  who  may  attend  the 
taking  of  the  depositions  without  prejudice  thereto." 

§  1032.  Equity  Rule  57  Restricting  Allowance  of  Continuances 
After  Case  on  Trial  Calendar. 

Equity  Rule  57.  "  (Continuances.)  After  a  cause  shall  be 
placed  on  the  trial  calendar  it  may  be  passed  over  to  another 
day  of  the  same  term,  by  consent  of  counsel  or  order  of  the 
court,  but  shall  not  be  continued  beyond  the  term  save  in  ex- 
ceptional cases  by  order  of  the  court  upon  good  cause  shown 
by  affidavit  and  upon  such  terms  as  the  court  shall  in  its 
discretion  impose.  Continuances  beyond  the  term  by  consent 
of  the  parties  shall  be  allowed  on  condition  only  that  a  stipu- 
lation be  signed  by  counsel  for  all  the  parties  and  that  all  costs 
incurred  theretofore  be  paid.  Thereupon  an  order  shall  be 
entered  dropping  the  case  from  the  trial  calendar,  subject  to 
reinstatement  within  one  year  upon  application  to  the  court 
by  either  party,  in  which  event  it  shall  be  heard  at  the  earliest 
convenient  day.  If  not  so  reinstated  within  the  year,  the  suit 
shall  be  dismissed  without  prejudice  to  a  new  one." 

§  1033.  Case  is  not  Dropped  from  the  Calendar  After  Hearing 
but  Court  may  Render  Decree  After  Term.  In  Davis  v.  Virginia 
Ry.  &  Power  Co.  (4th  Cir.),  229  Fed.  633,  638,  144  C.  C.  A.  43, 
the  court  said: 

Maminl — 28 


§  1033,  Ch.  49        MANUAL  OP  FEDERAL  PROCEDURE.  434 

"...  It  is  argued  that  the  ease  was  finally  disposed  of  by 
being  automatically  dropped  from  the  calendar  on  October  4, 
1913,  the  last  day  of  the  April  term,  under  the  requirement 
of  Equity  Rule  57,  and  that  the  failure  to  appeal  within  six 
months  from  that  date  was  fatal.  The  point  is  not  well  taken. 
The  rule  forbidding  continuances  was  meant  to  prevent  delay 
in  the  hearing  of  causes,  and  perhaps  it  was  intended  also  as 
a  stimulating  admonition  to  judges  to  decide  cases  as  promptly 
as  possible;  but  it  does  not  mean  that  after  a  case  has  been 
heard  it  shall  be  dropped  from  the  calendar  at  the  end  of 
the  term  and  thus  disposed  of  before  the  court  has  made  a 
final  decree." 


435  ,         TRIAL— EQUITY  SUITS.        Ch.  50,  §§  1040-KH1 


CHAPTER  50. 
TRIAL— EQUITY  SUITS. 

6EO. 

1040.  In  General. 

1041.  Depositions  After  Issue  and  Affidavits  of  Expert  Witnesses  in  Patent 

and  Trademark  Cases. 

1042.  Mode  of  Proof  Under  §  862,  Rev.  Stats. 

1043.  Rulings  on  Admissibility  of  Evidence  Under  Equity  Rule  4& 

1044.  Appointment  of  a  Stenographer  Under  Equity  Rule  50. 

1045.  Affidavits  of  Expert  Witnesses — Patent  and  Trademark  Cases  Under 

Equity   Rule   48. 

1046.  Pleading  and  Proof  in  Actions  for  Infringement  Under  §  4920,  Rev. 

Stats. 

§1040.  In  General.  Under  Equity  Rule  46  (§1043,  post), 
the  trial  of  an  equity  suit,  like  that  of  an  action  at  law,  is  by 
producing  the  witnesses  in  open  court,  unless  under  Equity  Rule 
47  (§  1020,  supra),  depositions  have  been  taken  for  good  and  ex- 
ceptional cause  for  departing  from  the  general  rule,  or,  under 
Equity  Rule  54  (§1020,  supra),  after  the  cause  was  at  issue, 
depositions  were  taken  under  §§  863,  865  and  867,  Rev.  Stats. 

Discovery  by  means  of  written  interrogatories  and  demanding 
the  admission  of  the  genuineness  of  documents,  etc.,  under  Equity 
Rule  58  is  treated  in  chapter  43  above. 

§  1041.  Depositions  After  Issue  and  Affidavits  of  Expert  Wit- 
nesses in  Patent  and  Trademark  Cases.  Under  Equity  Rule  47 
(chapter  48,  supra),  depositions  may  be  taken  when  allowed  by 
statute  or  for  good  and  exceptional  cause  for  departing  from  the 
general  rule.  Those  of  the  plaintiff  within  sixty  days  from  the 
time  the  cause  is  at  issue;  of  the  defendant  within  thirty  days 
from  the  expiration  for  filing  plaintiff's  depositions;  rebutting 
depositions  by  either  party  within  twenty  days  after  the  time 
for  taking  original  depositions  expires. 


§§  1042-1043,  Ch.  50    MANUAL  OF  FEDERAL  PROCEDURE.  436 

Under  Equity  Rule  54,  if  the  cause  is  at  issue,  depositions  may 
be  taken  as  provided  by§§  863,  865,  866,  and  867,  Revised  Stat- 
utes. 

-  In  cases  involving  the  validity  or  scope  of  a  patent  or  trade- 
mark, the  testimony  in  chief  of  expert  witnesses  as  to  matters  of 
opinion  may  be  set  forth  in  affidavits,  under  Equity  Rule  48,  those 
of  plaintiff  within  forty  days  after  the  causes  at  issue,  defendant 
within  twenty  days  after  plaintiff's  time  has  expired,  and  rebut- 
ting affidavits  within  fifteen  days  after  the  expiration  of  the  time 
for  filing  original  affidavits. 

§1042.    Mode  of  Proof  Under  §862,  Rev.  Stats. 

§  862,  Rev.  Stats.  ' '  The  mode  of  proof  in  causes  of  equity 
.  .  .  shall  be  according  to  rules  now  or  hereafter  prescribed 
by  the  Supreme  Court,  except  as  herein  specially  provided." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  171;  3  U.  S.  Comp.  Stats.  1916, 
§  1470.) 

In  chapter  11,  on  "Evidence,"  will  be  found  quoted  the  statu- 
tory provisions  permitting  the  admission  of  copies  of  documents, 
for  restoring  laws,  judgments,  and  records  and  admission  of  same 
in  evidence,  and  with  respect  to  acts  of  the  state  legislatures, 
records,  and  judicial  proceedings  of  state  courts,  their  authenti- 
cation and  proof  and  other  matters  of  like  character. 

Provisions  as  to  subpoenas  and  other  matters  relating  to  wit- 
nesses are  set  out  in  chapter  12  above.  Depositions  are  treated 
in  chapters  13  and  48  above. 

§1043.  Rulings  on  Admissibility  of  Evidence  Under  Equity 
Rule  46. 

Equity  Rule  46.  "In  all  trials  in  equity  the  testimony  of 
witnesses  shall  be  taken  orally  in  open  court,  except  as  other- 
wise provided  by  statute  or  these  rules.  The  court  shall  pass 
upon  the  admissibility  of  all  evidence  offered  as  in  actions 
at  law.  When  evidence  is  offered  and  excluded,  and  the 
party  against  whom  the  ruling  is  made  excepts  thereto  at  the 
time,  the  court  shall  take  and  report  so  much  thereof,  or  make 


437  TRIAL— EQUITY  SUITS.      Ch.  50,  §§  1044-1045 

such  a  statement  respecting  it,  as  will  clearly  show  the  char- 
acter of  the  evidence,  the  form  in  which  it  was  offered,  the 
objection  made,  the  ruling,  and  the  exception.  If  the  appel- 
late court  shall  be  of  opinion  that  the  evidence  should  have 
been  admitted,  it  shall  not  reverse  the  decree  unless  it  be 
clearly  of  opinion  that  material  prejudice  will  result  from 
an  affirmance,  in  which  event  it  shall  direct  such  further 
steps  as  justice  may  require."  (3  U.  S.  Comp.  Stats.  1916, 
§1536,  p.  2516;  Foster's  Federal  Practice,  5th  ed.,  §  352, 
p.  1130;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  131,  294, 
492,  496,  520,  714.) 

§  1044.    Appointment  of  a  Stenographer  Under  Equity  Rule  50. 

Equity  Rule  50.  "When  deemed  necessary  by  the  court 
or  officer  taking  testimony,  a  stenographer  may  be  appointed 
who  shall  take  down  testimony  in  shorthand  and,  if  required, 
transcribe  the  same.  His  fee  shall  be  fixed  by  the  court  and 
taxed  ultimately  as  costs.  The  expense  of  taking  a  deposition, 
or  the  cost  of  a  transcript,  shall  be  advanced  by  the  party 
calling  the  witness  or  ordering  the  transcript."  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2518;  Foster's  Federal  Practice, 
5th  ed.,  §§  352,  420,  pp.  1132,  1327.) 

§  1045.    Affidavits  of  Expert  Witnesses — Patent  and  Trade- 
mark Cases  Under  Equity  Rule  48. 

Equity  Rule  48.  "In  a  case  involving  the  validity  or  scope 
of  a  patent  or  trade  mark,  the  district  court  may,  upon  peti- 
tion, order  that  the  testimony  in  chief  of  expert  witnesses, 
whose  testimony  is  directed  to  matters  of  opinion,  be  set  forth 
in  affidavits  and  filed  as  follows :  Those  of  the  plaintiff  within 
forty  days  after  the  cause  is  at  issue;  those  of  the  defendant 
within  twenty  days  after  plaintiff's  time  has  expired;  and 
rebutting  affidavits  within  fifteen  days  after  the  expiration 
of  the  time  for  filing  original  affidavits.  Should  the  opposite 
party  desire  the  production  of  any  affiant  for  cross-examina- 
tion, the  court  or  judge  shall,  on  motion,  direct  that  said 
cross-examination  and  any  re-examination  take  place  before 
the  court  upon  the  trial,  and  unless  the  affiant  is  produced  and 
submits  to  cross-examination  in  compliance  with  such  direc- 
tion, his  affidavit  shall  not  be  used  as  evidence  in  the  cause." 


§  1046,  Ch.  50  MANUAL  OF  FEDERAL  PROCEDURE.  438 

(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2518;  Foster's  Federal 
Practice,  5th  ed.,  §  352,  p.  1131;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  pp.  492,  519,  520.) 

Under  Rule  48,  where  the  answer  sets  up  matter  which  may 
be  the  subject  of  expert  testimony,  the  court  in  its  discretion  may 
grant  a  motion  to  have  expert's  testimony  set  forth  in  affidavits 
and  filed.  (P.  M.  Co.  v.  Ajax  Rail  Anchor  Co.,  216  Fed.  634.) 

In  Todd  v.  Whitaker  (E.  D.  Pa.),  217  Fed.  319,  the  court  said: 

"If  a  request  for  opportunity  to  make  this  inspection  be 
denied,  or  if  what  is  offered  in  evidence  differs  from  what  was 
submitted  for  inspection,  the  present  rules  furnish  the  means 
of  preventing  a  plaintiff  from  being  taken  by  surprise.  .  .  . 
The  discretion  of  the  trial  judge  can  readily  afford  all  the 
additional  protection  required." 

§  1046.  Pleading1  and  Proof  in  Actions  for  Infringement 
Under  §4920,  Rev.  Stats. 

§  4920,  Rev.  Stats.  "In  any  action  for  infringement  the 
defendant  may  plead  the  general  issue,  and  having  given 
notice  in  writing  to  the  plaintiff  or  his  attorney  thirty  days 
before,  may  prove  on  trial  any  one  or  more  of  the  following 
special  matters: 

"First.  That  for  the  purpose  of  deceiving  the  public  the 
description  and  specification  filed  by  the  patentee  in  the 
Patent  Office  was  made  to  contain  less  than  the  whole  truth 
.  relative  to  his  invention  or  discovery,  or  more  than  is  neces- 
sary to  produce  the  desired  effect;  or, 

"Second.  That  he  had  surreptitiously  or  unjustly  ob- 
tained the  patent  for  that  which  was  in  fact  invented  by 
another,  who  was  using  reasonable  diligence  in  adapting  and 
perfecting  the  same;  or 

"Third.  That  it  has  been  patented  or  described  in  some 
printed  publication  prior  to  his  supposed  invention  or  dis- 
covery thereof,  or  more  than  two  years  prior  to  his  applica- 
tion for  a  patent  therefor;  or, 

"Fourth.  That  he  was  not  the  original  and  first  inventor 
or  discoverer  of  any  material  and  substantial  part  of  the 
thing  patented;  or, 


439  TRIAL — EQUITY    SUITS.  Ch.  50,  §  104G 

"Fifth.  That  it  had  been  in  public  use  or  on  sale  in  this 
country  for  more  than  two  years  before  his  application  for  a 
patent,  or  had  been  abandoned  to  the  public. 

"And  in  notices  as  to  proof  or  previous  invention,  knowl- 
edge, or  use  of  the  thing  patented,  the  defendant  shall  state 
the  names  of  the  patentees  and  the  dates  of  their  patents,  and 
when  granted,  and  the  names  and  residences  of  the  persons 
alleged  to  have  invented  or  to  have  had  the  prior  knowledge 
of  the  'thing  patented,  and  where  and  by  whom  it  had  been 
used;  and  if  any  one  or  more  of  the  special  matters  alleged 
shall  be  found  for  the  defendant,  judgment  shall  be  rendered 
for  him,  with  costs.  And  the  like  defenses  may  be  pleaded 
in  any  suit  in  equity  for  relief  against  an  alleged  infringe- 
ment; and  proofs  of  the  same  may  be  given  upon  like  notice 
in  the  answer  of  the  defendant,  and  with  the  like  effect." 
(Fed.  'Stats.  Ann.,  2d  ed.,  "Patents";  8  U.  S.  Comp.  Stats. 
1916,  §9466.) 


§§  1060-1061,  Ch.  51      MANUAL  OF   FEDERAL  PROCEDURE.  440 


CHAPTER  51. 

MASTERS  IN  CHANCERY. 

SEO. 

1060.  Appointment  and  Compensation  Under  Equity  Rule  68. 

1061.  Reference  of  Exceptional  Matters  to,  Under  Equity  Rule  59. 

1062.  Notice  and  Hearing  of  Reference  Under  Equity  Rule  60. 

1063.  Regulation  and  Method  of  Proceedings  Under  Equity  Rules  62,  63 

and  64. 

1064.  Illustration  of  Exceptional  Matters. 

1065.  Ruling  as  to  Form  of  Accounts  Before  Master  Under  Equity  Rule  68. 

§  1060.    Appointment  and  Compensation  Under  Equity  Rule 
68. 

Equity  Rule  68.  "The  district  courts  may  appoint  stand- 
ing masters  in  chancery  in  their  respective  districts  (a  major, 
ity  of  all  the  judges  thereof  concurring  in  the  appointment), 
and  they  may  also  appoint  a  master  pro  hac  vice  in  any  par- 
ticular case.  The  compensation  to  be  allowed  to  every  master 
shall  be  fixed  by  the  district  court,  in  its  discretion,  having 
regard  to  all  the  circumstances  thereof,  and  the  compensation 
shall  be  charged  upon  and  borne  by  such  of  the  parties  in 
the  cause  as  the  court  shall  direct.  The  master  shall  not  retain 
his  report  as  security  for  his  compensation ;  but  when  the 
compensation  is  allowed  by  the  court,  he  shall  be  entitled  to 
an  attachment  for  the  amount  against  the  party  who  is  or- 
dered to  pay  the  same,  if,  upon  notice  thereof,  he  does  not 
pay  it  within  the  time  prescribed  by  the  court."  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2524;  Foster's  Federal  Practice, 
5th  ed.,  §  385,  p.  1213;  Simkins'  Federal  Equity  Suit,  3d  ed., 
p.  557.) 

§  1061.    Reference  of  Exceptional  Matters  to,  Under  Equity 
Rule  59. 

Equity  Ride  !~>9.  "Save  in  matters  of  account,  a  reference 
to  master  shall  be  the  e.xception,  not  the  rule,  and  shall  be 
made  only  upon  a  showing  that  some  exceptional  condition 


441  MASTERS  IN   CHANCERY.  Ch.  51,  §  1062 

^j'eqtiires  it.  When  such  a  reference  is  made,  the  party  at 
whose^msTance  or  for  whose  benefit  it  is  made  shall  cause 
the  order  of  reference  to  be  presented  to  the  master  for  a 
hearing  within  twenty  days  succeeding  the  time  when  the 
reference  was  made,  unless  a  longer  time  be  specially  granted 
by  the  court  or  judge;  if  he  shall  omit  to  do  so,  the  adverse 
party  shall  be  at  liberty  forthwith  to  cause  proceedings  to  be 
had  before  the  master,  at  the  costs  of  the  party  procuring  the 
reference."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2521; 
Foster's  Federal  Practice,  5th  ed.,  §  386,  p.  1214;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  pp.  558,  559,  561.) 

§  1062.    Notice  and  Hearing  of  Reference  Under  Equity  Rule 
60.  * 

Equity  Rule  60.  "Upon  every  such  reference,  it  shall  be 
the  duty  of  the  master,  as  soon  as  he  reasonably  can  after 
the  same  is  brought  before  him,  to  assign  a  time  and  plate 
for  proceedings  in  the  same,  and  to  give  due  notice  thereof 
to  each  of  the  parties,  or  his  solicitor;  and  if  either  party 
shall  fail  to  appear  at  the  time  and  place  appointed,  the  master 
shall  be  at  liberty  to  proceed  ex  parte,  or,  in  his  discretion, 
to  adjourn  the  examination  and  proceedings  to  a  future  day, 
giving  notice  to  the  absent  party  or  his  solicitor  of  such 
adjournment;  and  it  shall  be  the  duty  of  the  master  to  pro- 
ceed with  all  reasonable  diligence  in  every  such  reference, 
and  with  the  least  practicable  delay,  and  either  party  shall 
be  at  liberty  to  apply  to  the  court,  or  a  judge  thereof,  for  an 
order  to  the  master  to  speed  the  proceedings  and  to  make 
his  report,  and  to  certify  to  the  court  or  judge  the  reason  for 
any  delay."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2522; 
Foster's  Federal  Practice,  5th  ed.,  §§  386,  388,  pp.  1214,  1218; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  526.) 


§  1062,  Ch.  51      MANUAL  OP  FEDERAL  taocEDURE.  442 


In  the  United  States  District  Court,  Southern  District  of  California,  South- 

ern Division. 

K.  Company,  a  Corporation, 

Complainant, 


v. 


Frank  Doe, 

Defendant. 


OEDEB  ON  ACCOUNTING. 


Before  ,  Esq.,  Special  Master. 

Pursuant  to  the  interlocutory  decree  entered  and  enrolled  in  the  above- 
entitled  suit  and  in  furtherance  of  the  references  therein  made  for  the  purpose 
of  taking  and  stating  an  account  of  the  profits,  gains,  savings  and  ad- 
vantages which  the  said  defendants  have  derived,  received  or  made  since 

,  1916,  by  reason  of  or  through  the  infringement  of  the  letters  patent, 

sued  on  in  said  suit  and  found  in  and  by  said  interlocutory  decree,  b^  an7 
manufacture,  use  or  sale,  or  improvement  to  any  or  either  of  said  devices 
containing  and  embodying  the  improvements  described  in  said  letters  patent 
and  claimed  in  the  claim  thereof,  and  for  the  purpose  of  assessing  the 
damages  which  complainant  has  sustained  since  said  date  or  shall  sustain 
by  reason  of  such  infringement  by  the  defendant,  you,  Frank  Doe,  are 
hereby  ordered  and  directed  to  appear  and  attend  before  me  at  the  hour 

o'clock  P.  M.  on  ,  May  ,  1917,  at  my  office,  Room  ,  

Building,  Los  Angeles,  California,  and  bring  with  you  and  render  an  account 
or  statement  in  writing  under  oath  of  the  number  of  infringing  devices  or 
parts  thereof  made  and  the  number  sold  by  you  in  complete  or  contributory 

infringement  of  letters  patent  No. granted  the day  of ,  1912,  to 

the  K.  Company;  the  details  of  such  manufacture  and  each  manufacture  and  of 
such  sales  and  each  sale  and  of  such  use  and  each  use  and  the  total  profits, 
gains,  savings  and  advantages  derived,  received,  realized  or  made  by  you 
in,  by  or  by  reason  of,  or  through  the  manufacture  or  sale  or  use  of  each 
of  said  devices  containing  and  embodying  the  improvements  described  in 
said  letters  patent  and  claimed  in  the  claim  thereof  and  infringed  by  you, 
and  also  set  forth  in  detail  specification  in  said  account  the  following  items: 

1.  The  total  number  of  devices  containing  and  embodying  the  improve- 
ments in  said  letters  patent   and   claimed   in   the   claim   thereof    and    the 
separate   parts   thereof   made,    sold   or   used   by   you   and   embraced   within 

the  claim  of  said  letters  patent  No.  referred  to  in  the  interlocutory 

decree   herein  to  the   date   of  the  entry  and   enrollment   of  the  interlocutory 
decree  herein; 

2.  A  statement  showing  to  whom  each  of  said  infringing  irrigating  con- 
nections   containing   and    embodying   the   improvements    described   in    said 
letters  patent  and  claimed  in  the  claim  thereof  were  sold,  the  dates  of  such 
sales,  the  actual  cost  of  manufacture  thereof,  and  the  selling  price  received 
therefor. 


443  MASTERS  IN  CHANCERY.  Ch.  51,  §  1063 

And  that  you  have  with  you  at  said  time  all  the  books,  papers,  documents, 
statements,  exhibits,  records,  vouchers  and  other  things  referring  to  the 
sale  of  such  irrigating  connections,  or  any  thereof,  or  such  separate  parts 
thereof,  so  directly  or  contributorily  infringing  such  letters  patent  as  afore- 
said, or  to  the  cost  of  manufacture,  or  to  the  sale  thereof,  or  the  amount, 
or  amounts  received  by  you  therefrom  in  any  manner,  or  to  the  number  of 
such  irrigating  connections  or  parts  thereof  made  by  you,  or  on  your  behalf 
either  in  the  county  of  Los  Angeles,  California,  or  elsewhere. 

This  order  is  directed  to  you,  your  attorneys,  officers, ,  directors,  clerks, 
agents,  servants,  workmen,  employees  and  associates  and  each  of  them  as 
may  stand  in  any  relation  to  you  in  the  premises;  all  in  accordance  with 
said  interlocutory  decree  and  the  powers  therein  thereby  conferred  upon 
me  and  in  accordance  with  the  Rules  60,  62,  63  and  64  of  the  Rules  of 
Practice  for  the  Courts  of  Equity  of  the  United  States  and  statutes  of  the 
United  States  in  such  case  made  and  provided. 

Dated  Los  Angeles,  California,  ,  1917. 

,  Special  Master. 

§  1063.  Regulation  and  Method  of  Proceedings  Under  Equity 
Rules  62,  63  and  64. 

Equity  Ride  62.  "The  master  shall  regulate  all  the  pro- 
ceedings in  every  hearing  before  him,  upon  every  reference; 
and  he  shall  have  full  authority  to  examine  the  parties  in  the 
cause,  upon  oath,  touching  all  matters  contained  in  the  ref- 
erence ;  and  also  to  require  the  production  of  all  books,  papers, 
writings,  vouchers,  and  other  documents  applicable  thereto; 
and  also  to  examine  on  oath,  viva  voce,  all  witnesses  produced 
by  the  parties  before  him,  or  by  deposition,  according  to  the 
acts  of  Congress,  or  otherwise,  as  here  provided;  and  also  to 
direct  the  mode  in  which  the  matters  requiring  evidence  shal) 
be  proved  before  him ;  and  generally  to  do  all  other  acts,  and 
direct  all  other  inquiries  and  proceedings  in  the  matters  before 
him,  which  he  may  deem  necessary  and  proper  to  the  justice 
and  merits  thereof  and  the  rights  of  the  parties."  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2522;  Foster's  Federal  Practice, 
5th  ed.,  §  388,  p.  1217;  Simkins'  Federal  Equity  Suit,  3d  ed., 
p.  563.) 

Equity  Rule  65.  "The  master  shall  be  at  liberty  to  exam- 
ine any  creditor  or  other  person  coming  in  to  claim  before 
him,  either  upon  written  interrogatories  or  viva  voce,  or  in 
both  modes,  as  the  nature  of  the  case  may  appear  to  him  to 
require.  The  evidence  upon  such  examinations  shall  be  taken 


§§  1064-1065,  Ch.  51     MANUAL  OP  FEDERAL.  PROCEDURE.  444 

down  by  the  master,  or  by  some  other  person  by  his  order 
and  in  his  presence,  if  either  party  requires  it,  in  order  that 
the  same  may  be  used  by  the  court  if  necessary."  (3  II.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2523;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  pp.  520,  562.) 

Equity  Rule  63.  "All  parties  accounting  before  a  master 
shall  bring  in  their  respective  accounts  in  the  form  of  debtor 
and  creditor;  and  any  of  the  other  parties  who  shall  not  be 
satisfied  with  the  account  so  brought  in  shall  be  at  liberty  to 
examine  the  accounting  party  viva  voce,  or  upon  interroga- 
tories, as  the  master  shall  direct."  (3  U.  S.  Comp.  Stats. 
1916,  §  1536,  p.  2523;  Foster's  Federal  Practice-,  5th  ed.,  §  389 
et  seq.,  pp.  1219,  1220;  Simkins'  Federal  Equity  Suit,  3d  ed., 
p.  563.) 

Equity  Rule  64.  "All  affidavits,  depositions,  and  docu- 
ments which  have  been  previously  made,  read,  or  used  in  the 
court  upon  any  proceeding  in  any  cause  or  matter  may  be 
used  before  the  master."  (3  U.  S.  Comp.  Stats.  1916,  §  1536, 
p.  2523;  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  563.) 

§  1064.  Illustration  of  Exceptional  Matters.  In  Destructor 
Co.  v.  City  of  Atlanta  (N.  D.  Ga,),  232  Fed.  746,  it  was  held  that 
' '  where  the  question  at  issue  in  a  suit  in  equity  was  as  to  whether 
a  refuse-burning  plant  built  for  a  city  fulfilled  the  requirements 
and  warranties  of  the  contract,  which  by  its  terms  was  to  be 
determined  by  tests,  and  the  contractor  alleged  that  the  city  re- 
fused to  cooperate  in  making  such  tests,  it  was  within  the  power 
of  the  court  to  appoint  a  disinterested  commission  to  make  the 
tests  and  report  the  results  bearing  on  all  questions  in  .dispute. ' ' 

§  1065.  Ruling  as  to  Form  of  Accounts  Before  Master.  In 
Cushman  &  Denison  Mfg.  Co.  v.  Grammes  (E.  D.  Pa.),  225  Fed. 
883,  at  page  887,  the  court  said: 

"When  the  right  of  a  plaintiff  to  an  accounting  is  found, 
Rule  63  gives  ample  authority  to  require  the  defendant  to 
file  such  account,  and  sufficiently  designates  its  form  and 
what  it  shall  contain.  In  form  it  must  be  a  debtor  and  cred- 
itor statement.  The  rule  indicates  that  it  shall  be  on  the 


445  MASTERS  IN   CHANCERY.  Ch.  51,  §  1065 

basis  of  a  cash  statement  of  moneys  received  and  disbursed. 
The  analogue  of  an  account  stated  by  a  sales  agent  or  other 
fiduciary  will  afford  a  guide  to  what  is  required.  If  the 
account  is  accepted  by  the  plaintiff,  the  profits  have  been 
ascertained,  and  this  inquiry  is  at  an  end.  If  the  statement 
is  not  acceptable,  the  case  of  a  hearing  upon  exceptions  to 
the  account  of  any  trustee  supplies  the  required  guide.  The 
account,  as  stated  by  the  defendants,  is  one  thing.  The  evi- 
dence from  which  the  master  finds  the  facts  upon  which  to 
base  an  account  stated  by  him  is  another  thing.  Care  should 
be  taken  to  keep  the  distinction  clear.  The  first  should  be 
a  financial  statement  in  cash  account  form  simply.  It  should 
not  be  a  list  of  possible  witnesses,  nor  a  statement  of  evi- 
dence, by  which  the  items  of  the  account  may  be  vouched. 
The  parties  may  call  witnesses  or  offer  evidence  bearing 
upon  accounting  facts.  Subpoenas  may  issue  and  include 
the  usual  duces  tecum  clauses.  The  production  of  books  and 
papers  may  be  compelled.  Rules  62  and  63  and  the  ordinary 
rules  which  pertain  to  such  matters  apply.  If  a  defendant 
objects  to  account,  or  a  witness  is  asked  to  testify,  or  to 
produce  books  or  papers,  and  objection  is  made,  the  question 
raised  should  be  passed  upon  by  the  master.  If  the  order 
of  the  master  is  met  by  a  refusal  to  comply,  the  refusal  may 
be  certified  to  the  court,  or  the  opposite  party  may  ask  the 
master  to  find  the  facts  and  to  state  an  account  against  the 
defendants  from  all  the  evidence  before  him. 

4<In  making  such  orders,  care  should,  of  course,  always  be 
taken  to  preserve  to  each  party  all  his  rights.  Under  the 
guise  of  requiring  an  account,  or  eliciting  facts  through  tes- 
timony and  evidence,  neither  party  should  be  required  to 
disclose  the  course  of  his  dealings,  so  that  a  rival  or  competi- 
tor may  injure  him  or  gain  an  unfair  advantage.  The  test 
is  always:  Is  the  requirement  relevant  to  the  decision  of  the 
cause?  Almost  everything  in  such  cases  must  in  the  first  in- 
stance be  left  to  the  discretion  of  the  trial  judge,  or  of  the 
master  acting  in  that  capacity.  Bringing  these  abstractions 
to  the  concrete,  we  decline  to  adjudge  the  defendants  to  be  in 
contempt  because  of  what  this  record  discloses,  and  are  of 
opinion  that  the  order  requiring  the  defendants  in  their 
accounting  to  give  the  names  and  addresses  of  their  customers 
should  be  revoked.  The  basis  of  the  expressed  willingness  of 
the  defendants  to  give  the  information  does  not  warrant  a 
contempt  finding." 


§  1070,  Ch.  52        MANUAL    OF    FEDERAL   PROCEDURE.  446 


CHAPTE'R  52. 
MASTER'S  REPORT. 

SEO. 

1070.  Master's  Report — Exceptions — Costs,  Under  Equity  Rules  61,  66,  67. 

1071.  Exceptions  to  Draft  Report,  not  Sufficient',  but  must   be  Filed  after 

the  Report  Itself  is  Filed. 

1072.  Report  Confirmed  if  No  Objections  Filed  but  Subject  to  be  Set  Aside 

on  Questions  of  Law. 

1073.  Master's  Conclusions  on  Matters  of  Fact  Presumed  Correct. 

1074.  Equity  Rule  66  Applies  to  Bankruptcy  Matters. 

1075.  Effect  of  Master's  Report  When  Reference  by  Consent  or  on  Stipulation. 

§1070.    Master's  Report  —  Exceptions  —  Costs,  Under  Equity 
Rules  61,  66  and  67. 

Equity  Rule  61.  "In  the  reports  made  by  the  master  to 
the  court,  no  part  of  any  state  of  facts,  account,  charge,  affi- 
davit, deposition,  examination,  or  answer  brought  in  or  used 
before  him  shall  be  stated  or  recited.  But  such  state  of  facts, 
account,  charge,  affidavit,  deposition,  examination,  or  answer 
shall  be  identified,  and  referred  to,  so  as  to  inform  the  court 
what  state  of  facts,  account,  charge,  affidavit,  deposition, 
examination,  or  answer  were  so  brought  in  or  used."  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2522.) 

Equity  Rule  66.  "The  master,  as  soon  as  his  report  is 
ready,  .shall  return  the  same  into  the  clerk's  office  and  the 
day  of  the  return  shall  be  entered  by  the  clerk  in  the  equity 
docket.  The  parties  shall  have  twenty  days  from. the  time 
of  the  filing  of  the  report  to  file  exceptions  thereto,  and  if 
no  exceptions  are  within  that  period  filed  by  either  party,  the 
report  shall  stand  confirmed.  If  exceptions  are  filed,  they 
shall  stand  for  hearing  before  the  court,  if  then  in  session,  or, 
if  not,  at  the  next  sitting  held  thereafter,  by  adjournment  or 
otherwise."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2523;  Fos- 
ter's Federal  Practice,  5th  ed.,  §  392,  p.  1231;  Simkins'  Fed- 
eral Equity  Suit,  3d  ed.,  pp.  564,  565,  568,  569,  571.) 

Equity  Rule  67.  "In  orde~r  to  prevent  exceptions  to  re- 
ports from  being  Hied  for  frivolous  causes,  or  for  mere  delay, 


447  MASTER'S  REPORT.         Ch.  52,  §§  1071-107-1 

the  party  whose  exceptions  are  overruled,  shall,  for  every 
exception  overruled,  pay  five  dollars  costs  to  the  other  party, 
and  for  every  exception  allowed  shall  be  entitled  to  the  same 
costs."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2524;  Foster's 
Federal  Practice,  5th  ed.,  §355,  p.  1149;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  pp.  566,  567,  573.) 

§1071.  Exceptions  to  Draft  Report,  not  Sufficient,  but  must 
be  Filed  After  the  Report  Itself  is  Filed.  Under  Equity  Rule  66, 
requiring  the  master  to  return  his  report  into  the  clerk's  office, 
and  giving  the  parties  twenty  days  from  the  time  of  the  filing  of 
the  report  to  file  exceptions  thereto,  exceptions  to  the  report  must 
be  filed  within  the  time  fixed,  and  exceptions  to  the  master's  draft 
or  proposed  report  merely  give  him  an  opportunity  to  correct  his 
report  and  are  insufficient  to  present  any  objections  to  the  report. 
(Decker  v.  Smith  (N.  D.  N.  Y.),  225  Fed.  776.) 

§  1072.  Report  Confirmed  if  No  Objections  Filed  but  Subject 
to  be  Set  Aside  on  Questions  of  Law.  The  report  of  a  special 
master,  to  which  no  exceptions  have  been  filed,  stands  confirmed, 
but  under  Equity  Rule  66,  the  court  may  decline  to  follow  its 
result,  if  satisfied  that  the  decision  of  the  master  on  the  question 
of  law  upon  which  it  depends  was  wrong.  (Isaac  McLean  Sons 
Co.  v.  William  S.  Butler  &  Co.  (D.  Mass.),  227  Fed.  325.) 

§  1073.  Master's  Conclusions  on  Matters  of  Fact  Presumed 
Correct.  The  conclusions  of  a  master  on  matters  of  fact  have 
every  reasonable  presumption  in  their  favor,  and  are  not  to  be  set 
aside  or  modified  unless  there  clearly  appears  to  have  been  error 
or  mistake  on  his  part.  .(Grushlaw  v.  Phoenix  Knitting  Works 
(:M  Cir.),  223  Fed.  513,  516.  130  C.  C.  A.  61.) 

§  1074.  Equity  Rule  66  Applies  to  Bankruptcy  Matters. 
Equity  Rule  66  provides  that  parties  shall  have  twenty  days  from 
the  time  of  filing  the  report  of  the  master  to  file  exceptions  thereto, 
and,  if  none  are  filed  within  that  period,  the  report  shall  stand 


§  1075,  Ch.  52          MANUAL    OF    FEDERAL,   PROCEDURE.  448 

confirmed.  Held  that,  where  an  application  for  discharge  of  a 
bankrupt  was  referred  to  the  referee  as  a  special  master  to  take 
testimony  and  report  the  same  with  his  findings  of  fact,  together 
with  his  recommendations  in  favor  of  or  against  the  discharge, 
exceptions  to  the  referee's  report  must  be  filed,  if  at  all,  within 
20  days  after  the  filing  of  the  report.  (In  re  Pierce,  210  Fed. 
389,  390.) 

§  1075.  Effect  of  Master's  Report  When  Reference  by  Consent 
or  on  Stipulation,  Where  by  consent  of  the  parties  an  order  was 
entered  appointing  a  special  master  with  power  to  hear  and  con- 
sider all  testimony  whether  taken  by  himself  or  by  deposition,  to 
view  all  physical  evidence  offered,  to  inspect  the  premises  involved 
in  the  suit,  and  to  report  all  testimony  with  exhibits,  together  with 
his  findings  of  fact  and  conclusions  of  law,  his  findings  of  fact 
were  conclusive  upon  the  court,  unless  unsupported  by  any  legal 
evidence,  or  contrary  to  all  the  evidence,  and  his  conclusions 
of  law,  based  upon  the  facts  so  found,  only  were  reviewable  on 
exceptions. 

Exceptions  to  the  report  of  a  master  which  present  questions 
of  law  only  are  not  a  waiver  of  the  conclusive  effect  of  his  findings 
of  fact.  (Hattiesburg  Lumber  Co.  v.  Herrick  (5th  cir.),  212  Fed. 
834,  129  C.  C.  A.  288.) 

When,  pursuant  to  a  stipulation  of  the  parties,  all  of  the  issues 
in  a  suit  in  equity  are  referred  to  a  master,  to  take  the  proofs  and 
report  the  same,  together  with  his  findings,  his  findings  of  fact 
are  not  subject  to  be  set  aside  and  disregarded  at  the  mere  dis- 
cretion of  the  court ;  but  so  far  as  a  finding  depends  on  conflicting 
testimony  or  on  the  credibility  of  witnesses,  or  so  far  as  there  is 
anj  competent  testimony  consistent  with  a  finding,  it  must  be 
treated  as  unassailable.  Nor  may  the  court  disregard  such  find- 
ings, and  proceed  to  make  findings  of  its  own,  because  the  master 
failed  to  make  findings  on  all  the  issues,  or  for  other  insufficiency 
in  his  report;  but  in  such  case  the  cause  should  be  resubmitted, 
with  proper  instructions.  (Connor  v.  United  States  (9th  Cir.), 
214  Fed.  522,  524,  131  C.  C.  A.  68.) 


1-49  RECEIVERS.  Ch.  53,  §§  1080-1083 


CHAPTER  53. 

REOEIVERa 

SEO. 

1080.  Persons  Ineligible  to  Act  as  Receivers. 

1081.  Receivers  Manage  Property  According  to  State  Laws. 

1082.  Rights  of  Employees  on  Properties  in  Hands  of  Receivers  to  be  Heard 

on  Terms  of  Employment. 

1083.  Receivers— When  Suable  Without  Leave  of  Court. 

§  1080.    Persons  Ineligible  to  Act  as  Receivers. 

§  68.  Jud.  Code.  "No  clerk  of  a  district  court  of  the 
United  States  or  his  deputy  shall  be  appointed  a  receiver  or 
master  in  any  case,  except  where  the  judge  of  said  court  shall 
determine  that  special  reasons  exist  therefor,  to  be  assigned 
in  the  order  of  appointment."  (36  Stats.  1105;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  548;  1  U.  S.  Comp.  Stats.  1916,  §  1050.) 

Part  §  20,  Act  May  28,  1896,  c.  252.  "It  shall  not  be  law- 
ful to  appoint  any  of  the  officers  named  in  this  section  (mar- 
shal, deputy  marshal,  attorney,  or  assistant  attorney  of  any 
district;  jury  commissioner,  marshal's  clerk,  bailiff,  crier, 
juror,  janitor  of  a  public  building,  civil  or  military  employee 
of  the  government,  or  clerk  or  employee  of  any  United  States 
justice  or  judge)  receiver  or  receivers  in  any  case  or  cases  now 
pending  or  that  may  hereafter  be  brought  in  the  courts  of  the 
United  States."  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  635;  2  U.  S. 
Comp.  Stats.  1916,  §  1334.) 

§  1081.    Receivers  Manage  Property  According  to  State  Laws. 

§55,  Jud.  Code  (Re-enacting  35  Stats.  436).  "Whenever 
in  any  cause  pending  in  any  court  of  the  United  States  there 
shall  be  a  receiver  or  manager  in  possession  of  any  property, 
such  receiver  or  manager  shall  manage  and  operate  such  prop- 
erty according  to  the  requirements  of  the  valid  laws  of  the 
state  in  which  such  property  shall  be  situated,  in  the  same 
manner  that  the  owner  or  possessor  thereof  would  be  bound 
to  do  if  in  possession  thereof.  Any  receiver  or  manager  who 

Manual— 29 


§§  1082-1083,  Ch.  53    MANUAL  OF  FEDERAL  PROCEDURE.  450 

shall  wilfully  violate  any  provision  of  this  section  shall  be 
fined  not  more  than  three  thousand  dollars,  or  imprisoned  not 
more  than  one  year,  or  both."  (36  Stats.  1104;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  540;  1  U.  S.  Comp.  Stats.  1916,  §  1047;  Fos- 
ter's Federal  Practice,  5th  ed.,  p.  1007.) 

§  1082.    Rights  of  Employees  on  Properties  in  Hands  of  Re- 
ceivers to  be  Heard  on  Terms  of  Employment. 

§P,  Act  July  15,  1913,  c.  6,  "That  whenever  receivers 
appointed  by  a  Federal  court  are  in  the  possession  and  con- 
trol of  the  business  of  employers  covered  by  this  act  the  em- 
ployees of  such  employers  shall  have  the  right  to  be  heard 
through  their  representative's  in  such  court  upon  all  questions 
affecting  the  terms  and  conditions  of  their  employment;  and 
no  reduction  of  wages  shall  be  made  by  such  receivers  with- 
out the  authority  of  the  court  therefor,  after  notice  to  such 
employees,  said  notice  to  be  given  not  less  than  twenty  days 
before  the  hearing  upon  the  receivers'  petition  or  application, 
and  to  be  posted  upon  all  customary  bulletin  boards  along  or 
upon  the  railway  or  in  the  customary  places  on  the  premises 
of  other  employers  covered  by  this  act."  (38  Stats.  107;  6 
Fed.  Stats.  Ann.,  2d  ed.,  p.  267;  8  U.  S.  Comp.  Stats.  1916, 
§  8674.) 

§  1083.    Receivers — When  Suable  Without  Leave  of  Court. 

§66,  Jud.  Cod*  (Re-enacting  25  Stats.  436}.  "Every  re- 
ceiver or  manager  of  any  property  appointed  by  any  court 
of  the  United  States  may  be  sued  in  respect  of  any  act  or 
transaction  of  his  in  carrying  on  the  business  connected  with 
such  property,  without  the  previous  leave  of  the  court  in  which 
such  receiver  or  manager  was  appointed ;  but  such  suit  shall 
be  subject  to  the  general  equity  jurisdiction  of  the  court  in 
which  such  manager  or  receiver  was  appointed  so  far  as  the 
same  may  be  necessary  to  the  ends  of  justice."  (36  Stats. 
1104;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  541;  1  U.  S.  Comp.  Stats. 
1916,  §1048;  Foster's  Federal  Practice,  5th  ed.,  pp.  167.  215, 
1012;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  162,  181,  256.) 


451  INJUNCTIONS.  Ch.  5i,  §  1100 


CHAPTER  54. 

INJUNCTIONS. 

SEC. 

1100.  Power  of  Federal  Courts  to  Issue  Writs — In  General. 

1101.  Injunctions — When  may  be  Granted  by  Justice  or  Judge  Instead  of  by 

Court. 

1102.  Injunctions   Under   the   Clayton   Act. 

1103.  Preliminary  Injunctions  and  Temporary  Restraining  Orders — Notice. 

1104.  Procedure  Where  Order  Granted  Without  Notice. 

1105.  Dissolution  and  Modification  of  Temporary  Restraining  Orders. 

1106.  Order  to  be  Filed  Forthwith. 

1107.  Injunction  Pending  Appeal. 

1108.  When  Proceedings  in  State  Courts  may  be  Stayed. 

1109.  Injunction  to  Restrain  Enforcement  of  State  Laws  on  Ground  of  Uncon-. 

stitutionality — By  'Whom  Granted. 

1110.  Hearing  of  Application  in  Such  Cases — Notice. 

1111.  Appeal  from  Order  Granting  or  Denying  Injunction  in  Such  Cases. 

1112.  Enforcement  of  Injunction. 

1113.  Writs  of  Ne  Exeat— When  and  by  Whom  Granted. 

1114.  Writs  of  Scire  Facias— By  What  Courts  Issuable. 

1115.  Power  of  Courts  to  Administer  Oaths  and  Punish  for  Contempt. 

1116.  Injunction    Restraining    Receivership     Proceedings    Against     National 

Banks. 

1117.  No  Interlocutory  Injunction  Against  National  Banks  in  State  Courts. 

1118.  Tax  Assessment  or  Collection  may  not  be  Enjoined. 

1119.  Injunctions  on  Distress  Warrant  Against  Officer  for  Failure  to  Account 

for  Public  Moneys — Procedure. 

1120.  Procedure  upon  Refusal  to  Grant,  or  on  Dissolntion  of  Such  Injunction. 

1121.  Injunction  Against  Violation  of  Prohibition  Laws. 

1122.  Forms — Interlocutory  and  Perpetual  Injunctions. 

§  1100.    Power  of  Federal  Courts  to  Issue  Writs — In  General. 

Part  §  262,  Jud.  Code  (Drawn  from  §  716,  Rev.  Stats.,  and 
§  12,  Act.  Mch.  3,  1891,  c.  517).  "...  The  Supreme  Court, 
the  circuit  courts  of  appeals,  and  the  district  courts  shall  have 
power  to  issue  all  writs  not  specifically  provided  for  by  stat- 
ute, which  may  be  necessary  for  the  exercise  of  their  respec- 
tive jurisdictions,  and  agreeable  to  the  usages  and  principles 
of  law."  (36  Stats.  1162;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  928; 


§§  1101-1102,  Ch.  54      MANUAL  OF   FEDERAL  PROCEDURE.  452 

2  U.  S.  Comp.  Stats.  1916,  §1239;  Poster's  Federal  Practice, 
5th  ed.,  pp.  8,  1469,  1527,  2413;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  p.  41.) 

§1101.    Injunctions — When  may  be  Granted  by  Justice  or 
Judge  Instead  of  by  Court. 

§  264,  Jud.  Code  (Drawn  from  §  719,  Rev.  Stats.).  "Writs 
of  injunction  may  be  granted  by  any  justice  of  the  Supreme 
Court  in  cases  where  they  might  be  granted  by  the  Supreme 
Court;  and  by  any  judge  of  a  district  court  in  cases  where 
they  might  be  granted  by  such  court.  But  no  justice  of  the 
Supreme  Court  shall  hear  or  allow  any  application  for  an 
injunction  or  restraining  order  in  any  cause  pending  in  the 
circuit  to  which  he  is  allotted,  elsewhere  than  within  such  cir- 
cuit, or  at  such  place  outside  of  the  same  as  the  parties  may 
stipulate  in  writing,  except  when  it  cannot  be  heard  by  the 
district  judge  of  the  district.  In  case  of  the  absence  from  the 
district  of  the  district  judge,  or  of  his  disability,  any  circuit 
judge  of  the  circuit  in  which  the  district  is  situated  may  grant 
an  injunction  or  restraining  order  in  any  case  pending  in  the 
district  court,  where  the  same  might  be  granted  by  the  dis- 
trict judge."  (36  Stats.  1162;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  954;  2  U.  S.  Comp.  Stats.  1916,  §1241;  Foster's  Federal 
Practice,  5th  ed.,  pp.  812,  816,  902.) 

§  1102.    Injunctions  Under  the  Clayton  Act. 

§  15,  Act  October  15,  1914,  c.  323  (Clayton  Act).  [Injunc- 
tions— Courts — Duty  of  district  attorneys — Parties  defendant.] 
"That  the  several  district  courts  of  the  United  States  are  hereby 
invested  with  jurisdiction  to  "prevent  and  restrain  violations 
of  this  Act,  and  it  shall  be  the  duty  of  the  several  district 
attorneys  of  the  United  States,  in  their  respective  districts, 
under  the  direction  of  the  Attorney  General,  to  institute  pro- 
ceedings in  equity  to  prevent  and  restrain  such  violations. 
.  Such  proceedings  may  be  by  way  of  petition  setting  forth  the 
case  and  praying  that  such  violation  shall  be  enjoined  or  other- 
wise prohibited.  When  the  parties  complained  of  shall  have 
been  duly  notified  of  such  petition,  the  court  shall  proceed,  ^as 
soon  as  may  be,  to  the  hearing  and  determination  of  the  case ; 


453  INJUNCTIONS.  Ch.  54,  §  1102 

and  pending  such  petition,  and  before  final  decree,  the  court 
may  at  any  time  make  such  temporary  restraining  order  or 
prohibition  as  shall  be  deemed  just  in  the  premises.  When- 
ever it  shall  appear  to  the  court  before  which  any  such  pro- 
ceeding may  be  pending  that  the  ends  of  justice  require  that 
other  parties  should  be  brought  before  the  court,  the  court 
may  cause  them  to  be  summoned,  whether  they  reside  in- the 
district  in  which  the  court  is  held  or  not,  and  subpoenas  to 
that  end  may  be  served  in  any  district  by  the  marshal  thereof." 
(38  Stats.  736;  8  U.  S.  Comp.  Stats.  1916,  §  8835n,  p.  9694.) 

§16,  Act  Oct.  15,  1914  (Clayton  Act).  [Injunctive  re- 
lief by  private  parties.]  "That  any  person,  firm,  corporation, 
or  association  shall  be  entitled  to  sue  for  and  have  injunctive 
relief,  in  any  court  of  the  United  States  having  jurisdiction 
over  the  parties,  against  threatened  loss  or  damage  by  a  viola- 
tion of  the  antitrust  laws,  including  sections  two,  three,  seven 
and  eight  of  this  Act,  when  and  under  the  same  conditions  and 
principles  as  injunctive  relief  against  threatened  conduct  that 
will  cause  loss  or  damage  is  granted  by  courts  of  equity,  under 
the  rules  governing  such  proceedings,  and  upon  the  execution 
of  proper  bond  against  damages  for  an  injunction  improv- 
idently  granted  and  a  showing  that  the  danger  of  irreparable 
loss  or  damage  is  immediate,  a  preliminary  injunction  may 
issue:  Provided,  That  nothing  herein  contained  shall  be  con- 
strued to  entitle  any  person,  firm,  corporation,  or  association, 
except  the  United  States,  to  bring  suit  in  equity  for  injunctive 
relief  against  any  common  carrier  subject  to  the  provisions  of 
the  Act  to  regulate  commerce,  approved  February  fourth,  eigh- 
teen hundred  and  eighty-seven,  in  respect  to  any  matter  subject 
to  the  regulation,  supervision,  or  other  jurisdiction  of  the  Inter- 
state Commerce  Commission."  (38  Stats.  737;  8  U.  S.  Comp 
Stats.  1916,  §  8835o,  p.  9697.) 

§17,  Act  Oct.  15,  1914  (Clayton  Act).  [Preliminary  in- 
junctions and  temporary  restraining  orders — Notice.]  "That 
no  preliminary  injunction  shall  be  issued  without  notice  to  the 
opposite  party. 

No  temporary  restraining  order  shall  be  granted  without 
notice  to  the  opposite  party  unless  it  shall  clearly  appear  from 
specific  facts  shown  by  affidavit  or  by  the  verified  bill  that 
immediate  and  irreparable  injury,  loss,  or  damage  will  result 


§  1102,  Ch.  54          MANUAL    OP    FEDERAL   PROCEDURE.  454 

to  the  applicant  before  notice  can  be  served  and  a  hearing  had 
thereon.  Every  such  temporary  restraining  order  shall  be 
indorsed  with  the  date  and  hour  of  issuance,  shall  be  forth- 
with filed  in  the  clerk's  office  and  entered  of  record,  shall 
define  the  injury  and  state  why  it  is  irreparable  and  why  the 
order  was  granted  without  notice,  and  shall  by  its  terras  expire 
within  such  time  after  entry,  not  to  exceed  ten  days,  as  the 
court  or  judge  may  fix,  unless  within  the  time  so  fixed  the 
order  is  extended  for  a  like  period  for  good  cause  shown,  and 
the  reasons  for  such  extension  shall  be  entered  of  record.  In 
case  a  temporary  restraining  order  shall  be  granted  without 
notice  in  the  contingency  specified,  the  matter  of  the  issuance 
of  a  preliminary  injunction  shall  be  set  down  for  a  hearing  at 
the  earliest  possible  time  and  shall  take  precedence  of  all  mat- 
ters except  older  matters  of  the  same  character ;  and  when  the 
same  comes  up  for  hearing  the  party  obtaining  the  temporary 
restraining  order  shall  proceed  with  the  application  for  a  pre- 
liminary injunction,  and  if  he  does  not  do  so  the  court  shall 
dissolve  the  temporary  restraining  order.  Upon  two  days' 
notice  to  the  party  obtaining  such  temporary  restraining  order 
the  opposite  party  may  appear  and  move  the  dissolution  or 
modification  of  the  order,  and  in  that  event  the  court  or  judge 
shall  proceed  to  hear  and  determine  the  motion  as  expeditiously 
as  the  ends  of  justice  may  require. 

Section  two  hundred  and  sixty-three  of  an  Act  entitled  "An 
Act  to  codify,  revise,  and  amend  the  laws  relating  to  the 
judiciary,"  approved  March  third,  nineteen  hundred  and 
eleven,  is  hereby  repealed. 

Nothing  in  this  section  contained  shall  *be  deemed  to  alter, 
repeal,  or  amend  section  two  hundred  and  sixty-six  of  an  Act 
entitled  "An  Act  to  codify,  revise,  and  amend  the  laws  relat- 
ing to  the  judiciary,"  approved  March  third,  nineteen  hundred 
and  eleven. "  (38  Stats.  737 ;  6  Fed.  Stats.  Ann.,  2d  ed.,  p.  139 ; 
2  U.  S.  Comp.  Stats.  1916,  §  1243a,  p.  1962.) 

§18,  Act  of  Oct.  15,  1914  (Clayton  Act).  [Restraining 
orders,  etc. — Security  as  condition  precedent.]  "That,  except 
as  otherwise  provided  in  section  16  of  this  Act,  no  restraining 
order  or  interlocutory  order  of  injunction  shall  issue,  except 
upon  the  giving  of  security  by  the  applicant  in  such  sum  as  the 
court  or  judge  may  deem  proper,  conditioned  upon  the  pay- 
ment of  such  costs  and  damages  as  may  be  incurred  or  suffered 


455  INJUNCTIONS.  Ch.  54,  §  1102 

by  any  party  who  may  be  found  to  have  been  wrongfully  en- 
joined or  restrained  thereby."  (38  Stats.  738;  6  Fed.  Stats. 
Ann.,  2d  ed.^  p.  140;  2  U.  S.  Comp.  Stats.  1916,  §  1243b, 
p.  1963.) 

§19,  Act  of  Oct.  15,  1914  (Clayton  Act}.  [Restraining 
orders,  etc. — Contents.]  "That  every  order  of  injunction  or 
restraining  order  shall  set  forth  the  reasons  for  the  issuance 
of  the  same,  shall  be  specific  in  terms,  and  shall  describe  in 
reasonable  detail,  and  not  by  reference  to  the  bill  of  complaint 
or  other  document,  the  act  or  acts  sought  to  be  restrained,  and 
shall  be  binding  only  upon  the  parties  to  the  suit,  their  officers, 
agents,  servants,  employees,  and  attorneys,  or  those  in  active 
concert  or  participating  with  them,  and  who  shall,  by  personal 
service  or  otherwise,  have  received  actual  notice  of  the  same." 
(38  Stats.  738 ;  6  Fed.  State.  Ann.,  2d  ed.,  p.  140;  2  U.  S.  Comp. 
Stats.  1916,  §  1243c,  p.  1943.) 

§20,  Act  of  Oct.  15,  1914  (Clayton  Act).  [Restraining 
orders,  etc. — When  not  to  issue.]  "That  no  restraining  order 
or  injunction  shall  be  granted  by  any  court  of  the  United 
States,  or  a  judge  or  the  judges  thereof,  in  any  case  between 
an  employer  and  employees,  or  between  employers  and  em- 
ployees, or  between  employees,  or  between  persons  employed 
and  persons  seeking  employment,  involving,  or  growing  out 
of,  a  dispute  concerning  terms  or  conditions  of  employment, 
unless  necessary  to  prevent  irreparable  injury  to  property, 
or  to  a  property  right,  of  the  party  making  the  application, 
for  which  injury  there  is  no  adequate  remedy  at  law,  and 
such  property  or  property  right  must  be  described  with 
particularity  in  the  application,  which  must  be  in  writing  and 
sworn  to  by  the  applicant  or  by  his  agent  or  attorney. 

And  no  such  restraining  order  or  injunction  shall  prohibit 
any  person  or  persons,  whether  singly  or  in  concert,  from 
terminating  any  relation  of  employment,  or  from  ceasing  to 
perform  any  work  or  labor,  or  from  recommending,  advising, 
or  persuading  others  by  peaceful  means  so  to  do;  or  from  at- 
tending at  any  place  where  any  such  person  or  persons  may 
lawfully  be,  for  the  purpose  of  peacefully  obtaining  or  com- 
muniicating  information,  or  from  peacefully  persuading  any 
person  to  work  or  to  abstain  from  working;  or  from  ceasing  to 
patronize  or  to  employ  any  party  to  such  dispute,  or  from 
recommending,  advising,  or  persuading  others  by  peaceful  and 


§  1103,  Ch.  54          MANUAL    OF    FEDERAL   PROCEDURE.  456 

lawful  means  so  to  do;  or  from  paying  or  giving  to,  or  with- 
holding from,  any  person  engaged  in  such  dispute,  any  strike 
benefits  or  other  moneys  or  things  of  value ;  or  from  peaceably 
assembling  in  a  lawful  manner,  and  for  lawful  purposes;  or 
from  doing  any  act  or  thing  which  might  lawfully  be  done  in 
the  absence  of  such  dispute  by  any  party  thereto;  nor  shall 
any  of  the  acts  specified  in  this  paragraph  be  considered  or 
held  to  be  violations  of  any  law  of  the  United  States."  (38 
Stats.  738 ;  6  Fed.  Stats.  Ann.,  2d  ed.,  p.  141 ;  2  U.  S.  Comp. 
Stats.  1916,  §  1243d,  p.  1964.) 

§1103.  Preliminary  Injunctions  and  Temporary  Restraining 
Orders — Notice. 

Part  Equity  Rule  73.  "No  preliminary  injunction  shall 
be  granted  without  notice  to  the  opposite  party.  Nor  shall 
any  temporary  restraining  order  be  granted  without  notice  to 
the  opposite  party,  unless  it  shall  clearly  appear  from  specific 
facts,  shown  by  affidavit  or  by  the  verified  bill,  that  immediate 
and  irreparable  loss  or  damage  will  result  to  the  applicant 
before  the  matter  can  be  heard  on  notice.  .  .  .  '  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2526;  Foster's  Federal  Practice, 
5th  ed.,  §§  255,  257,  291,  pp.  815,  817,  905;  Simians'  Federal 
Equity  Suit,  3d  ed.,  p.  474.) 

Under  Equity  Rule  73,  a  court  of  equity  is  without  power  to 
issue  an  injunction  unless  there  is  a  properly  verified  bill  upon 
which   to   base   the   same.     (Cathey   v.    Norfolk   &   W.    By.    Co.>x 
(4th  Cir.),  228  Fed.  26,  29,  142  C.  C.  A.  482.) 

A  restraining  order  was  issued  without  notice  and  without  any 
averment  of  immediate  and  irreparable  loss,  restraining  defendant 
from  selling  a  patent  obtained  while  in  complainant's  employ  and 
while  under  contract  to  assign  to  complainant  any  patent  obtained 
on  inventions  while  in  complainant's  employ.  Under  Rule  73  the 
record  showed  that  complainant  would  be  remediless  and  would 
suffer  such  loss,  and  the  restraining  order  without  notice  and  pre- 
liminary injunction  were  properly  granted.  (Thullen  v.  Triumph 
Electric  Co.  (3d  Cir.),  212  Fed.  143,  128  C.  C.  A.  655.) 


457  INJUNCTIONS.  Ch.  54,  §§  1104-110(5 

•Under  Rule  73,  motion  made  to  dissolve,  court  held  that  a  tem- 
porary restraining  order  granted  under  §  263,  Jud.  Code  (repealed 
by  the  Clayton  Act,  §  1102,  supra} ,  ceases  without  further  order 
of  the  court  on  the  hearing  of  the  motion  for  temporary  injunction. 
(Pack  v.  Carter  (9th  Cir.),  223  Fed.  638,  139  C.  C.  A.  184.) 

§  1104.    Procedure  Where  Order  Granted  Without  Notice. 

Part  Equity  Rule  73.  "...  In  case  a  temporary  restrain- 
ing order  shall  be  granted  without  notice,  in  ^he  contingency 
specified,  the  matter  shall  be  made  returnable  at  the  earliest 
possible  time,  and  in  no  event  later  than  ten  days  from  the 
date  of  the  order,  and  shall  take  precedence  of  all  matters, 
except  older  matters  of  the  same  character.  When  the  matter 
comes  up  for  hearing  the  party  who  obtained  the  temporary 
restraining  order  shall  proceed  with  his  application  for  a  pre- 
liminary injunction,  and  if  he  does  not  do  so  the  court  shall 
dissolve  his  temporary  restraining  order.  .  .  .  '  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2526;  Foster's  Federal  Practice, 
5th  ed.,  §§  255,  257,  291,  pp.  815,  817,  905.) 

§  1105.  Dissolution  and  Modification  of  Temporary  Restrain- 
ing Orders.  In  addition  to  the  penalty  of  dissolution  prescribed 
by  the  preceding  section,  a  temporary  restraining  order  may  be 
dissolved  or  modified  in  accordance  with  the  following  rule : — 

Part  Equity  Rule  73.  "...  Upon  two  days'  notice  to 
the  party  obtaining  such  temporary  restraining  order,  the 
opposite  party  may  appear  and  move  the  dissolution  or  modifi- 
cation of  the  order,  and  in  that  event  the  court  or  judge  shall 
proceed  to  hear  and  determine  the  motion  as  expeditiously  as 
the  ends  of  justice  may  require.  .  ,.,.. '  (3  U.  S.  Comp.  Stats. 
1916,  §  1536,  p.  2526;  Foster's  Federal  Practice,  5th  ed., 
§§255,  257,  291,  pp.  815,  817,  905;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  p.  475.) 

§  1106.    Order  to  be  Filed  Forthwith. 

Part  Equity  Rule  73.  "...  Every  temporary  restrain- 
ing order  shall  be  forthwith  filed  in  the  clerk's  office." 
(3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2526;  Foster's  Federal 


§§  1107-1109,  Ch.  54    MANUAL  OF  FEDERAL  PROCEDURE.  458 

Practice,  5th  ed.,  §§  255,  257,  291,  pp.  815,  817,  905;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  p.  474.) 


§  1107.    Injunction  Pending  Appeal. 

Equity  Rule  74.  "When  an  appeal  from  a  final  decree, 
in  an  equity  suit,  granting  or  dissolving  an  injunction,  is 
allowed  by  a  justice  or  a  judge  who  took  part  in  the  decision 
of  the  cause,  he  may,  in  his  discretion,  at  the  time  of  such 
allowance,  make  an  order  suspending,  modifying  or  restoring 
the  injunction  during  the  pendency  of  the  appeal,  upon  such 
terms,  as  to  bond  or  otherwise,  as  he  may  consider  proper 
for  the  security  of  the  rights  of  the  opposite  party."  (3  U.  S. 
Comp.  Stats.  1916,  §1536,  p.  2527;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  p.  629.) 

§  1108.    When  Proceedings  in  State  Courts  may  be  Stayed. 

§555,  Jud.  Code  (Re-enacting  §270,  Rev.  Stats.).  "The 
writ  of  injunction  shall  not  be  granted  by  any  court  of  the 
United  States  to  stay  proceedings  in  any  court  of  a  state,  ex- 
cept in  cases  where  such  injunction  may  be  authorized  by  any 
law  relating  to  proceedings  in  bankruptcy."  (36  Stats.  1162  ; 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  959 ;  2  U.  S.  Comp.  Stats.  1916, 
§1242;  Foster's  Federal  Practice,  5th  ed.,  p.  856;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  pp.  475,  476.) 

§  1109.    Injunction  to  Restrain  Enforcement  of  State  Laws  on 
Ground  of  Unconstitutionality — By  Whom  Granted. 

First  Part  §  266,  Jud.  Code  (Re-enacting  §  17,  Act  June  18, 
1910,  c.  309}.  "No  interlocutory  injunction  suspending  or 
restraining  the  enforcement,  operation,  or  execution  of  any 
statute  of  a  state  by  restraining  the  action  of  any  officer  of 
such  state  in  the  enforcement  or  execution  of  such  statute,  or 
in  the  enforcement  or  execution  of  an  order  made  by  an  admin- 
istrative board  or  commission  acting  under  and  pursuant  to 
the  statutes  of  such  state,  shall  be  issued  or  granted  by  any 
justice  of  the  Supreme  Court,  or  by  any  district  coiirt  of  the 
United  States,  or  by  any  judge  thereof,  or  by  any  circuit 
judge  acting  as  district  judge,  upon  the  ground  of  the  uncon- 


459  INJUNCTIONS.  Ch.  51,  §  1110 

stitntionality  of  such  statute,  unless  the  application  for  the 
same  shall  be  presented  to  a  justice  of  the  Supreme  Court  of 
the  United  States,  or  to  a  circuit  or  district  judge,  and  shall 
be  heard  and  determined  by  three  judges,  of  whom  at  least 
one  shall  be  a  justice  of  the  Supreme  Court,  or  a  circuit  judge, 
and  the  other  two  may  be  either  circuit  or  district  judges, 
and  unless  a  majority  of  said  three  judges  shall  concur  in 
granting  such  application.  Whenever  such  application  as 
aforesaid  is  presented  to  a  justice  of  the  Supreme  Court,  or 
to  a  judge,  he  shall  immediately  call  to  his  assistance  to  hear 
and  determine  the  application  two  other  judges:  Provided, 
hawever,  That  one  of  such  three  judges  shall  be  a  justice  of 
the  Supreme  Court,  or  a  circuit  judge."  (36  Stats.  1162,  as 
amended  by  Act  March  4,  1913,  c.  160,  37  Stats.  1013 ;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  983;  2  U.  S.  Comp.  Stats.  1916,  §  1243; 
Foster's  Federal  Practice,  5th  ed.,  pp.  397,  906;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  pp.  471,  472,  473,  475.) 

Last  Part  §  266,  Added  by  Amendment  of  March  4,  1913, 
c.  160;  37  Stats.  1013.  "It  is  further  provided  that  if  before 
the  final  hearing  of  such  application  a  suit  shall  have  been 
brought  in  a  court  of  the  state  having  jurisdiction  thereof 
under  the  laws  of  such  state,  to  enforce  such  statute  or  order, 
accompanied  by  a  stay  in  such  state  court  of  proceedings 
under  such  statute  or  order  pending  the  determination  of  such 
suit  by  such  state  court,  all  proceedings  in  any  court  of  the 
United  States  to  restrain  the  execution  of  such  statute  or  order 
shall  be  stayed  pending  the  final  determination  of  such  suit 
in  the  courts  of  the  state.  Such  stay  may  be  vacated  upon 
proof  made  after  hearing,  and  notice  of  ten  days  served  upon 
the  attorney  general  of  the  state,  that  the  suit  in  the  state 
courts  is  not  being  prosecuted  with  diligence  and  good  faith.'^ 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  983;  2  U.  S.  Comp.  Stats.  1916, 
§1243;  Foster's  Federal  Practice,  5th  ed.,  pp.  397,  906;  Sim- 
kins'  Federal  Equity  Suit,  3d  ed.,  pp.  471,  472,  473,  475.) 

§  1110.    Hearing-  of  Application  in  Such  Cases — Notice. 

Part  §  266,   Jud.    Code.     "Said   application  shall   not   be 

heard  or  determined  before  at  least  five  days'  notice  of  the 

hearing  has  been  given  to  the  governor  and  to  the  attorney 

*    general  of  the  state,  and  to  such  other  persons  as  may  be  de- 


§§  1111-]  112,  Oil.  54      MANUAL  OF  FEDERAL  PROCEDURE.  460 

fendants  in  the  suit:  Provided,  That  if  of  opinion  that  irre- 
parable loss  or  damage  would  result  to  the  complainant  unless 
a  temporary  restraining  order  is  granted,  any  justice  of  the 
Supreme  Court,  or  any  circuit  or  district  judge,  may  grant 
such  temporary  restraining  order  at  any  time  before  such 
hearing  and  determination  of  the  application  for  an  inter- 
locutory injunction,  but  such  temporary  restraining  order 
shall  remain  in  force  only  until  the  hearing  and  determination 
of  the  application  for  an  interlocutory  injunction  upon  notice 
as  aforesaid.  The  hearing  upon  such  application  for  an  inter- 
locutory injunction  shall  be  given  precedence  and  shall  be  in 
every  way  expedited  and  be  assigned  for  a  hearing  at  the 
earliest  practicable  day  after  the  expiration  of  the  notice  here- 
inbefore provided  for."  (36  Stats.  1162;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  984;  2  U.  S.  Comp.  Stats.  1916,  §  1243;  Foster's  Fed- 
eral Practice,  5th  ed.,  pp.  397,  906;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  pp.  471,  472,  473,  475.) 

§  1111.    Appeal  from  Order  Granting  or  Denying-  Injunction 
in  Such  Cases. 

Part  §  266,  Jud.  Code.  "An  appeal  may  be  taken  direct  to 
the  Supreme  Court  of  the  United  States  from  the  order  grant- 
ing or  denying,  after  notice  and  hearing,  an  interlocutory 
injunction  in  such  case."  (36  Stats.  1162;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  983 ;  2  U.  S.  Comp.  Stats.  1916,  §  1243 ;  Foster's  Fed- 
eral Practice,  5th  ed.,  pp.  397,  906;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  pp.  471,  472,  473,  475.) 

§1112.    Enforcement  of  Injunction. 

Equity  Ride  7.  "The  process  of  subpoena  shall  constitute 
the  proper  mesne  process  in  all  suits  in  equity,  in  the  first 
instance,  to  require  the  defendant  to  appear  and  answer  the 
bill ;  and,  unless  otherwise  provided  in  these  rules  or  specially 
ordered  by  the  court,  a  writ  of  attachment  and,  if  the  defend- 
ant cannot  be  found,  a  writ  of  sequestration,  or  a  writ  of 
assistance  to  enforce  a  delivery  of  possession,  as  the  case  may 
require,  shall  be  the  proper  process  to  issue  for  the  purpose 
of  compelling  obedience  to  any  interlocutory  or  final  order  or 
decree  of  the  court."  (3  U.  S.  Comp.  Stats.  1916,  §  1536, 


461  INJUNCTIONS.  Ch.  54,  §  1113 

p.   2498;  Foster's  Federal  Practice,   5th  ed.,  pp.  570,   574; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  312,  590.) 

Equity  Rule  8.  "Final  process  to  execute  any  decree  may, 
if  the  decree  be  solely  for  the  payment  of  money,  be  by  a 
writ  of  execution,  in  the  form  used  in  the  district  court  in 
suits  at  common  law  hi  actions  of  assumpsit.  If  the  decree 
be  for  the  performance  of  any  specific  act,  as  for  example, 
for  the  execution  of  a  conveyance  of  land  or  the  delivering  up 
of  deeds  or  other  documents,  the  decree  shall,  in  all  cases, 
prescribe  the  time  within  which  the  act  shall  be  done,  of  which 
the  defendant  shall  be  bound,  without  further  service,  to  take 
notice;  and  upon  affidavit  of  the  plaintiff,  filed  in  the  cterk's 
office,  that  the  same  has  not  been  complied  with  within  the 
prescribed  time,  the  clerk  shall  issue  a  writ  of  attachment 
against  the  delinquent  party,  from  which,  if  attached  thereon, 
he  shall  not  be  discharged,  unless  upon  a  full  compliance  with 
the  decree  and  the  payment  of  all  costs,  or  upon  a  special 
order  of  the  court,  or  a  judge  thereof,  upon  motion  and  affi- 
davit, enlarging  the  time  for  the  performance  thereof.  If  the 
delinquent  party  cannot  be  found  a  writ  of  sequestration  shall 
issue  against  his  estate,  upon  the  return  of  non  est  inventus, 
to  compel  obedience  to  the  decree.  If  a  mandatory  order,  in- 
junction or  decree  for  the  specific  performance  of  any  act  or 
contract  be  not  complied  with,  the  court  or  a  judge,  besides, 
or  instead  of,  proceedings  against  the  disobedient  party  for  a 
contempt  or  by  sequestration,  may  by  order  direct  that  the 
act  required  to  be  done,  be  done,  so  far  as  practicable,  by  some 
other  person  appointed  by  the  court  or  judge,  at  the  cost  of 
the  disobedient  party,  and  the  act,  when  so  done,  shall  have 
like  effect  as  if  done  by  him."  (3  U.  S.  Comp.  Stats.  1916, 
§1536,  p.  2498;  Foster's  Federal  Practice,  5th  ed.,  pp.  209, 
814,  1262,  1272,  1345,  1353,  1364,  1365,  1385,  1387;  Simkins1 
Federal  Equity  Suit,  3d  ed.,  pp.  585,  590,  591,  593,  771.) 

§  1113.    Writs  of  Ne  Exeat — When  and  by  Whom  Granted. 

§261,  Jud.  Code  (Re-enacting  §717,  Rev.  Stats.).  "Writs 
of  ne  exeat  may  be  granted  by  any  justice  of  the  Supreme 
Court,  in  cases  where  they  might  be  granted  by  the  Supreme 
Court;  and  by  any  district  judge,  in  cases  where  they  might 
be  granted  by  the  district  court  of  which  he  is  a  judge.  But 


§§  1114-1115,  Ch.  54      MANUAL  OF  FEDERAL  PROCEDURE.  462 

no  writ  of  ne  exeat  shall  be  granted  unless  a  suit  in  equity 
.  is  commenced,  and  satisfactory  proof  is  made  to  the  court  or 
judge  granting  the  same  that  the  defendant  designs  quickly 
to  depart  from  the  United  States."  (36  Stats.  1162;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  926;  2  U.  S.  Comp.  Stats.  1916,  §  1238; 
Foster's  Federal  Practice,  5th  ed.,  p.  1045;  Simkins'  Federal 
Equity  Suit,  3d  ed.,  pp.  284,  285,  48"  0,  481.) 

§  1114.    Writs  of  Scire  Facias — By  What  Courts  Issuable. 

Part  §  262,  Jud.  Code.  ' '  The  Supreme  Court  and  the  dis- 
trict courts  shall  have  power  to 'issue  writs  of  scire  facias." 
(36  Stats.  1162;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  928;  2  U.  S. 
Comp.  Stats.  1916,  §1239;  Foster's  Federal  Practice,  5th  ed., 
pp.  8,  1469,  1527,  2413;  Simkins'  Federal  Equity  Suit,  2d  ed., 
p.  41.) 

§  1115.    Power  of  Courts  to  Administer  Oaths  and  Punish  for 
Contempt. 

§268,  Jud.  Code.  "The  said  courts  shall  have  power  to 
impose  and  administer  all  necessary  oaths,  and  to  punish,  by 
fine  or  imprisonment,  at  the  discretion  of  the  court,  contempts 
of  their  authority :  Provided,  That  such  power  to  punish  con- 
tempts shall  not  be  construed  to  extend  to  any  cases  except 
the  misbehavior  of  any  person  in  their  presence,  or  so  near 
thereto  as  to  obstruct  the  administration  of  justice,  the  mis- 
behavior of  any  of  the  officers  of  said  courts  in  their  official 
transactions,  and  the  disobedience  or  resistance  by  any  such 
officer,  or  by  any  party,  juror,  witness,  or  other  person  to  any 
lawful  writ,  process,  order,  rule,  decree,  or  command  of  the 
said  courts."  (36  Stats.  1162;  5  Fed.  Stats.  Ann..  2d  ed.. 
p.  1009;  2  U.  S.  Comp.  Stats.  1916,  §  1245;  2  Foster's  Federal 
Practice,  5th  ed.,  §428,  p.  1354;  Simkins'  Federal  Equity 
Suit,  3d  ed.,  pp.  471,  472,  473,  475.) 

§22,  Act  of  Oct.  15,  1914  (Clayton  Act}.  [Contempt— 
Procedure.}  "That  whenever  it  shall  be  made  to  appear  to  any 
district  court  or  judge  thereof,  or  to  any  judge  therein  sitting, 
by  the  return  of  a  proper  officer,  on  lawful  process,  or  upon 
the  affidavit  of  some  credible  person,  or  by  information  filed 
by  any  district  attorney,  that  there  is  reasonable  ground  to 


463  INJUNCTIONS.  Ch.  54,  §  1115 

believe  that  any  person  has  been  guilty  of  such  contempt,  the 
court  or  judge  thereof,  or  any  judge  therein  sitting,  may  issue 
a  rule  requiring  the  said  person  so  charged  to  show  cause 
upon  a  day  certain  why  he  should  not  be  punished  therefor, 
which  rule,  together  with  a  copy  of  the  affidavit  or  informa- 
tion, shall  be  served  upon  the  person  charged,  with  sufficient 
promptness  to  enable  him  to  prepare  for  and  make  return  to 
the  order  at  the  time  fixed  therein.  If  upon  or  by  such  return, 
in  the  judgment  of  the  court,  the  alleged  contempt  be  not 
sufficiently  purged,  a  trial  shall  be  directed  at  a  time  and  place 
fixed  by  the  court:  Provided,  however,  That  if  the  accused, 
being  a  natural  person,  fail  or  refuse  to  make  return  to  the 
rule  to  show  cause,  an  attachment  may  issue  against  his  per- 
son to  compel  an  answer,  and  in  case  of  his  continued  failure 
or  refusal,  or  if  for  any  reason  it  be  impracticable  to  dispose 
of  the  matter  on  the  return  day,  he  may  be  required  to  give 
reasonable  bail  for  his  attendance  at  the  trial  and  his  submis- 
sion to  the  final  judgment  of  the  court.  Where  the  accused 
is  a  body  corporate,  an  attachment  for  the  sequestration  of  its 
property  may  be  issued  upon  like  refusal  or  failure  to  answer. 

In  all  cases  within  the  purview  of  this  Act  such  trial  may 
be  by  the  court,  or,  upon  demand  of  the  accused,  by  a  jury; 
in  which  latter  event  the  court  may  impanel  a  jury  from  the 
jurors  then  in  attendance,  or  the  court  or  the  judge  thereof 
in  chambers  may  cause  a  sufficient  number  of  jurors  to  be 
selected  and  summoned,  as  provided  by  law,  to  attend  at  the 
time  and  place  of  trial,  at  which  time  a  jury  shall  be  selected 
and  impaneled  as  upon  a  trial  for  misdemeanor;  and  such 
trial  shall  conform,  as  near  as  may  be,  to  the  practice  in 
criminal  cases  prosecuted  by  indictment  or  upon  information. 

If  the  accused  be  found  guilty,  judgment  shall  be  entered 
accordingly,  prescribing  the  punishment,  either  by  fine  or  im- 
prisonment, or  both,  in  the  discretion  of  the  court.  Such  fine 
shall  be  paid  to  the  United  States  or  to  the  complainant  or 
other  party  injured  by  the  act  constituting  the  contempt,  or 
may,  where  more  than  one  is  so  damaged,  be  divided  or  appor- 
tioned among  them  as  the  court  may  direct,  but  in  no  case 
shall  the  fine  to  be  paid  to  the  United  States  exceed,  in  case 
the  accused  is  a  natural  person,  the  sum  of  $1,000,  nor  shall 
such  imprisonment  exceed  the  term  of  six  months:  Provided, 
That  in  any  case  the  court  or  a  judge  thereof  may,  for  good 


§  1115,  Ch.  54          MANUAL    OF    FEDERAL   PROCEDURE.  464 

cause  shown,  by  affidavit  or  proof  taken  in  open  court  or 
before  such  judge  and  filed  with  the  papers  in  the  case,  dis- 
pense with  the  rule  to  show  cause,  and  may  issue  an  attach- 
ment for  the  arrest  of  the  person  charged  with  contempt;  in 
which  event  such  person,  when  arrested,  shall  be  brought  before 
such  court  or  a  judge  thereof  without  unnecessary  delay  and 
shall  be  admitted  to  bail  in  a  reasonable  penalty  for  his  ap- 
pearance to  answer  to  the  charge  or  for  trial  for  the  contempt ; 
and  thereafter  the  proceedings  shall  be  the  same  as  provided 
herein  in  case  the  rule  had  issued  in  the  first  instance."  (38 
Stats.  738 ;  6  Fed.  State.  Ann.,  2d  ed.,  p.  142 ;  2  U.  S.  Comp. 
Stats.  1916,  §  1245c,  p.  2008.) 

§23,  Act  of  Oct.  '15,  1914  (Clayton  Act).  [Contempt- 
Review  of  conviction — Bail.]  "That  the  evidence  taken  upon 
the  trial  of  any  persons  so  accused  may  be  preserved  by  bill  of 
exceptions,  and  any  judgment  of  conviction  may  be  reviewed 
upon  writ  of  error  in  all  respects  as  now  provided  by  law  in 
criminal  cases,  and  may  be  affirmed,  reversed,  or  modified 
as  justice  may  require.  Upon  the  granting  of  such  writ  of 
error,  execution  of  judgment  shall  be  stayed,  and  the  accused, 
if  thereby  sentenced  to  imprisonment,  shall  be  admitted  to 
bail  in  such  reasonable  sum  as  may  be  required  by  the  court, 
or  by  any  justice,  or  any  judge  of  any  district  court  of  the 
United  States  or  any  court  of  the  District  of  Columbia."  (38 
Stats.  739 ;  6  Fed.  Stats.  Ann.,  2d  ed.,  p.  142 ;  2  U.  S.  Comp. 
Stats.  1916,  §  1245c,  p.  2009.) 

§24,  Act  of  Oct.  15,  1914  (Clayton  Act).  [Contempts- 
Existing  statutes  when  applicable.]  "That  nothing  herein  con- 
tained shall  be  construed  to  relate  to  contempts  committed  in 
the  presence  of  the  court,  or  so  near  thereto  as  to  obstruct  the 
administration  of  justice,  nor  to  contempts  committed  in  dis- 
obedience of  any  lawful  writ,  process,  order,  rule,  decree,  or 
command  entered  in  any  suit  or  action  brought  or  prosecuted 
in  the  name  of,  or  on  behalf  of,  the  United  States,  but  the 
same,  and  all  other  cases  of  contempt  not  specifically  embraced 
within  section  twenty-one  of  this  Act,  may  be  punished  in 
conformity  to  the  usages  at  law  and  in  equity  now  prevailing." 
[38  Stats.  739 ;  6  Fed.  Stats.  Ann.,  2d  ed.,  p.  143  ;  2  U.  S.  Comp. 
Stats.  1916,  §  1245d,  p.  2009.) 


465  INJUNCTIONS.  Ch.  54,  §§  1116-1117 

§25,  Act  of  Oct.  15,  1914  (Clayton  Act).  [Contempts- 
Statute  of  limitations — Other  suits — Pending  proceedings. 
"That  no  proceeding  for  contempt  shall  be  instituted  against 
any  person  unless  begun  within  one  year  from  the  date  of  the 
act  complained  of;  nor  shall  any  such  proceeding  be  a  bar 
to  any  criminal  prosecution  for  the  same  act  or  acts ;  but 
nothing  herein  contained  shall  affect  any  proceedings  in  con- 
tempt pending  at  the  time  of  the  passage  of  this  Act."  (38 
Stats.  740 ;  6  Fed.  Stats.  Ann.,  2d  ed.,  p.  143 ;  2  U.  S.  Comp. 
Stats.  1916,  §  1245e,  p.  2009.) 

§1116.     Injunction     Restraining     Receivership     Proceedings 
Against  National  Banks. 

§5237,  Rev.  Stats.  "Whenever  an  association  against 
which  proceedings  have  been  instituted,  on  account  of  any 
alleged  refusal  to  redeem  its  circulating  notes  as  aforesaid, 
denies  having  failed  to  do  so,  it  may,  at  any  time  within  ten 
days  after  it  has  been  notified  of  the  appointment  of  an  agent, 
as  provided  in  section  fifty-two  hundred  and  twenty-seven, 
apply  to  the  nearest  circuit,  or  district,  or  territorial  court 
of  the  United  States  to  enjoin  further  proceedings  in  the 
premises;  and  such  court,  after  citing  the  Comptroller  of  the 
Currency  to  show  cause  why  further  proceedings  should  not 
be  enjoined,  and  after  the  decision  of  the  court  or  finding 
of  a  jury  that  such  association  has  not  refused  to  redeem  its 
circulating  notes,  when  legally  presented  in  the  lawful  money 
of  the  United  States,  shall  make  an  order  enjoining  the  Comp- 
troller, and  any  receiver  acting  under  his  direction,  from  all 
further  proceedings  on  account  of  such  alleged  refusal." 
(6  Fed.  Stats.  Ann.,  2d  ed.,  p.  872;  9  U.  S.  Comp.  Stats.  1916, 
§9824.) 

§  1117.    No  Interlocutory  Injunction  Against  National  Banks 
in  State  Courts. 

Part  §  5242,  Rev.  Stats.  "No  .  .  .  injunction  .  .  .  shall  be 
issued  against  such  association  (national  bank)  or  its  prop- 
erty before  final  judgment  in  any  suit,  action,  or  proceeding 
in  any  state,  county,  or  municipal  court."  (6  Fed.  Stats.  Ann., 
2d  ed.,  p.  903;  9  U.  S.  Comp.  Stats.  1916,  §  9834.) 

Manual — 30 


§§  1118-1119,  Ch.  54      MANUAL  OP  FEDERAL  PROCEDURE.  466 

§  1118.    Tax  Assessment  or  Collection  may  not  be  Enjoined. 

§  3224,  Rev.  Stats.  ' '  No  suit  for  the  purpose  of  restraining 
the  assessment  or  collection  of  any  tax  shall  be  maintained  in 
any  court."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  1032;  6  U.  S. 
Comp.  Stats.  1916,  §5947.) 

This  section  applies  only  to  federal  taxation.  (Shelton  v. 
Platt,  139  U.  S.  597/35  L.  Ed.  273,  11  Sup.  Ct.  646;  Schulenberg- 
Boeckler  Lumber  Co.  v.  Hayward,  20  Fed.  422 ;  State  R.  R.  Tax 
Cases,  92  U.  S.  575,  23  L.  Ed.  663.) 

It  is  doubtful,  inasmuch  as  it  is  contained  in  that  part  of  the 
Revised  Statutes  relating  to  internal  revenue,  whether  it  applies 
to  other  forms  of  taxation. 

§  1119.  Injunctions  on  Distress  Warrant  Against  Officer  for 
Failure  to  Account  for  Public  Moneys — Procedure. 

§  3636,  Rev.  Stats.  "Any  person  who  considers  himself 
aggrieved  by  any  warrant  of  distress  issued  under  the  fore- 
going provisions  may  prefer  a  bill  of  complaint  to  any  dis- 
trict judge  of  the  United  States,  setting  forth  therein  the 
nature  and  extent  of  the  injury  of  which  he  complains;  and 
thereupon  the  judge  may  grant  an  injunction  to  stay  proceed- 
ings on  such  warrant  altogether,  or  for  so  much  thereof  as 
the  nature  of  the  case  requires.  But  no  injunction  shall 
issue  till  the  party  applying  for  it  gives  bond,  with  sufficient 
security,  in  a  sum  to  be  prescribed  by  the  judge,  for  the  per- 
formance of  such  judgment  as  may  be  awarded  against  him ; 
nor  shall  the  issuing  of  such  injunction  in  any  manner  impair 
the  lien  produced  by  the  issuing  of  the  warrant.  And  the 
same  proceedings  shall  be  had  on  such  injunction  as  in  other 
cases,  except  that  no  answer  shall  be  necessary  on  the  part  of 
the  United  States;  and  if,  upon  dissolving  the  injunction,  it 
appears  to  the  satisfaction  of  the  judge  that  the  application 
for  the  injunction  was  merely  for  delay,  the  judge  may  add 
to  the  lawful  interest  assessed  on  all  sums  found  due  against 
the  complainant  such  damages  as,  with  such  lawful  interest, 
shall  not  exceed  the  rate  of  ten  per  centum  a  year.  Such  in- 
junction may  be  granted  or  dissolved  by  the  district  judge 
either  in  or  out  of  court."  (Fed.  Stats.  Ann.,  2d  ed.,  "Public 
Moneys";  7  U.  S.  Comp.  Stats.  1916,  §  6635.) 


467  INJUNCTIONS.  Ch.  54,  §§1120-1121 

§  1120.  Procedure  upon  Refusal  to  Grant,  or  on  Dissolution 
of  Such  Injunction. 

§3637,  Rev.  Stats.  "When  the  district  judge  refuses  to 
grant  an  injunction  to  stay  proceedings  on  a  distress  warrant, 
as  aforesaid,  or  dissolves  such  injunction  after  it  is  granted, 
any  person  who  considers  himself  aggrieved  by  the  decision 
in  the  premises  may  lay  before  the  circuit  justice,  or  circuit 
judge  of  the  circuit  within  which  such  district  lies,  a  copy  of 
the  proceeding  had  before  the  district  judge ;  and  thereupon 
the  circuit  justice  or  circuit  judge  may  grant  an  injunction 
or  permit  an  appeal,  as  the  case  may  be,  if,  in  his  opinion, 
the  equity  of  the  case  requires  it.  The  same  proceedings,  sub- 
ject to  the  same  conditions,  shall  be  had  upon  such  injunction 
in  the  circuit  court  as  are  prescribed  in  the  district  court." 
(Fed.  Stats.  Ann.,  2d  ed.,  "Public  Moneys";  7  U.  S.  Comp. 
Stats.  1916,  §  6636.) 

The  appellate  powers  of  the  circuit  court  herein  referred  to 
were,  by  act  of  1891,  vested  in  the  circuit  courts  of  appeals,  and 
Supreme  Court. 

§  1121.    Injunction  Against  Violation  of  Prohibition  Laws. 

Alaska. 

§20,  Act  Feb.  14,  1917,  c. .     "That  any  United  States 

District  Attorney  for  the  Territory  of  Alaska  may  maintain 
an  action  in  equity  in  the  name  of  the  United  States  to  abate 
and  perpetually  enjoin  such  a  nuisance  as  defined  in- the  pre- 
ceding section.  No  bond  shall  be  required.  Any  person, 
violating  the  terms  of  any  injunction  granted  in  such  pro- 
ceedings shall  be  punished  for  contempt  by  a  fine  of  not  more 
than  $500  or  by  imprisonment  in  the  Federal  jail  for  not 
more  than  six  months,  or  both  such  fine  and  imprisonment, 
in  the  discretion  of  the  court."  (Pamphlet  Supp.,  Fed.  Stats. 
Ann.,  Nos.  9,  10,  pp.  9,  10.) 

District  of  Columbia. 

Act  Mch.  3,1917,  c.  165,  §  14.  "The  United  States  district 
attorney  for  the  District  of  Columbia,  or  any  citizen  of  the 
District  of  Columbia,  may  maintain  an  action  in  equity  in  the 


§  1122,  Ch.  54          MANUAL    OP    FEDERAL,   PROCEDURE. 


468 


name  of  the  United  States  to  abate  and  perpetually  enjoin 
such  a  nuisance  as  defined  in  the  preceding  section.  The  in- 
junction shall  be  granted  at  the  commencement  of  the  action. 
and  no  bond  shall  be  required.  Any  person  violating  the 
terms  of  any  injunction  granted  in  such  proceedings  shall  be 
punished  for  contempt  by  a  fine  of  not  less  than  $100  nor 
more  than  $500  and  by  imprisonment  in  the  District  jail  or 
workhouse  for  not  less  than  thirty  days  nor  more  than  six 
months,  in  the  discretion  of  the  court."  (U.  S.  Comp.  Stats. 
1916,  §§  3369kk,  Advance  Sheets  239,  Fed.  No.  2,  Supp. 
p.  125.) 

Act  Mch.  3,  1917,  c.  165,  §  15.  Restraining  violations  of 
Act.  "When  any  violation  of  this  Act  is  threatened,  or  shall 
have  occurred,  or  is  occurring,  the  doing  of,  or  the  continu- 
ance or  repetition  of  the  unlawful  act,  or  any  of  like  kind  by 
the  offending  party  may  be  prevented  by  a  writ  of  injunction 
out  of  a  court  of  equity  upon  a  bill  filed  in  all  respects  as  in 
cases  of  liquor  nuisances;  in  like  manner  the  writ  of  injunc- 
tion may  be  employed  to  compel  obedience  to  any  provision 
of  this  Act."  (U.  S.  Comp.  Stats.  1916,  §  33691,  Advance 
Sheets  239,  Fed.  No.  2,  Supp.  p.  125.) 

•  rf»-.t3p    *?,»     frX?4  • 'r-i  "V    •'••  *'&•&&     rflr '••  -»rJ  rtT         fdf  T  /? 

§  1122.    Forms — Interlocutory  and  Perpetual  Injunctions. 

United    States    District    Court,    Southern    District    of    California,    Southern 

Division. 

In  Equity — No. . 


>  INTERLOCUTORY  DECREE  SUSTAINING  PATENT. 


K.  Company,  a  Corporation, 

Complainant, 
v. 
Frank  Doe, 

Defendant. 

This  cause  having  come  on  to  be  heard,  upon  the  pleadings,  proceedings  and 

proofs  herein  filed  on  behalf  of  both  parties,  and  after  hearing  ,  Esq., 

counsel  for  complainant,  and  ,  Esq.,  counsel  for  defendant,  and  after 

due  proceedings  had,  upon  consideration,  on  motion  of  ,  Esq.,  solicitor 

and  counsel  for  complainant,  and  due  deliberation  had,  it  is  hereby 

Ordered,  adjudged  and  decreed,  as  follows: 

First.  That  the  letters  patent  of  the  United  States  of  America,  issued  to 

,  assignor  to  K.  Company,  his  assignee,  on  the day  of ,  1912,  for 

new  and  useful  improvements  ih  irrigating  connections,  No.  and  assigned 


469  INJUNCTIONS.  Ch.  54,  §  1122 

to  the  complainant  K.  Company,  a  corporation,  are  good  and  valid  in  law, 
the  claim  of  which  is  as  follows:  [Statement  of  Claim.] 

Second.  That  the  said  was  the  first  true  and  original  inventor  of  the 

invention  and  improvement  described  and  claimed  in  said  letters  patent,  and 
particularly  recited  in  the  claim  thereof. 

Third.  That  the  complainant  the  K.  Company,  a  corporation  duly  organized 
and  existing  under  and  by  virtue  of  the  laws  of  the  state  of  California,  and 
having  its  principal  place  of  business  in  the  city  of  Los  Angeles,  county  of 
Los  Angeles,  state  of  California,  is  the  lawful  owner  of  said  letters  patent, 
and  is  entitled  t'o  the  exclusive  rights  in,  to  and  under  said  letters  patent, 
and  in  and  to  the  invention  and  improvements  secured  thereby. 

Fourth.  That  the  defendant  Frank  Doe  has  infringed  upon  said  letters 
patent,  and  the  claim  thereof,  and  upon  the  exclusive  rights  of  the  complain- 
ant under  same,  by  manufacturing,  using  and  vending  to  others  to  be  used, 
irrigating  connections,  containing  and  embodying  the  improvements  described 
in  said  letters  patent  and  particularly  claimed  in  the  claim  thereof. 

Fifth.  That  the  complainant  do  recover  of  the  defendant  the  profits, 
gains,  savings  and  advantages  which  the  said  defendant  has  derived, 

received  or  made  since  ,  1912,  by  reason  of  the  infringement  of  the 

exclusive  rights  under  said  letters  patent,  by  any  manufacture,  use  or 
sale,  or  inducement  to  any  or  either  of  said  acts,  of  irrigating  connections, 
containing  and  embodying  the  improvements  described  in  said  letters  patent 
and  claimed  in  the  claim  thereof,  and  that  complainant  do  recover  of  said 
defendant  any  and  all  damages  which  the  complainant  has  sustained  since 
said  date  by  reason  of  such  infringement  of  its  exclusive  rights,  by  said 
defendant. 

Sixth.  And  it  is  hereby  referred  to  ,  a  master  of  this  court,  who  i» 

hereby  appointed  to  take,  ascertain  and  state  the  number  of  infringing  devices 
or  parts  thereof  made,  and  the  number  sold  by  the  said  defendant  in  in- 
fringement of  the  claim  of  said  letters  patent,  and  the  number  of  such 
infringing  devices  or  parts  thereof  which  the  said  defendant  have  on  hand, 
and  the  gains,  profits,  savings  and  advantages  derived  by  the  said  defendant 
from  and  through  said  infringement,  and  to  assess  the  damages  thereby 
suffered  by  the  said  complainant  and  to  report  thereon  to  this  court  with 
all  convenient  speed. 

And  the  said  defendant,  his  agents,  attorneys,  clerks,  servants,  workmen, 
and  employees,  are  hereby  directed  and  required  to  attend  before  the  said 
master  from  time  to  time  as  required  by  him,  and  to  produce  before  him  such 
books,  papers,  statements,  exhibits,  vouchers  and  documents  as  they  may  be 
directed  by  said  master  to  produce,  and  to  submit  to  such  oral  or  other  examina- 
tion as  the  master  may  direct. 

Seventh.  That  a  perpetual  injunction  issue  out  of  and  under  the  seal  of  this 
court,  directed  to  said  defendant  Frank  Doe,  his  associates,  officers,  agent's, 
attorneys,  clerks,  servants,  workmen  and  employees,  enjoining  and  restraining 


§  1122,  Cll.  54          MANUAL    OF    FEDERAL   PROCEDURE.  470 

them  and  each  of  them  from  directly  or  indirectly  making  or  causing  to  be 
made,  using  or  causing  to  be  used,  advertising  for  sale,  vending  or  causing 
to  be  sold  in  any  manner,  any  articles,  devices  or  parts  thereof  containing  and 
employing  or  embodying  the  said  invention  and  improvements  described  in  said 
letters  patent,  No.  ,  and  claimed  in  the  claim  thereof,  and  from  counter- 
feiting or  imitating  the  said  invention  and  improvements  or  any  part  or  parts 
thereof  in  any  way,  or  from  infringing  upon  or  violating  the  said  letters 
patent  in  any  way  whatsoever. 

Eighth.  That  the  complainant  do  recover  of  the  defendant  the  costs, 
charges  and  disbursements  of  this  suit  to  be  taxed,  and  that  the  question 
of  increase  of  damages  and  all  further  questions  be  reserved  until  the 
coming  in  of  the  master's  report. 

,  United  States  District  Judge. 

0.  K.  as  to  form. 

,  Solicitor  for  Defendant. 

United    States    District    Court,    Southern    District    of    California,    Southern 

Dirision. 

In  Equity — No. . 

K.  Company,  a  Corporation, 

Complainant, 


T. 


INJUNCTION. 


Frank  Doe, 

Defendant. 

The  President  of  the  United  States  of  America  to  Frank  Doe,  His  Agents, 
Attorneys,  Clerks,  Servants,  Workmen  and  Employees,  Greeting: 

Whereas  it  has  been  represented  to  us  in  our  district  court  of  the  United 
States  for  the  Southern  District  of  California,  Southern  Division,  that  letters 

patent  of  the  United  States  were  issued  to  ,  assignor  to  K.  Company,  his 

assignee,  for  new  and  useful  improvements  in  irrigating  connections,  dated 

the  day  of  ,  1912,  No.  ,  the  claim  of  which  is  as  follows : 

[Describe  claim]  ;  of  which  the  plaintiff  is  the  sole  and  exclusive  owner,  and 
that  the  plaintiff  is  also  the  owner  of  all  rights  to  recover  damages  and  profits 
from  all  infringers  of  said  letters  patent  (as  well  prior  as  subsequent  to  the 
assignment  of  said  letters  patent  to  plaintiff) ;  that  said  letters  patent  are 
good  and  valid,  and  have  been  infringed  by  the  defendants  herein  by  the 
manufacture,  use  and  sale  of  irrigating  connections,  containing  and  embodying 
said  invention: 

Now,  therefore,  we  do  strictly  command  and  enjoin  you,  the  said  Frank  Doe, 
your  agents,  attorneys,  clerks,  servants,  workmen  and  employees,  for  the 
remainder  of  the  term  of  the  life  of  said  letters  patent  from  further  infring- 
ing the  same,  from  directly  or  indirectly  making  or  causing  to  be  made,  using 
or  causing  to  be  used,  advertising  for  sale,  vending  or  causing  to  be  sold  in 


471  INJUNCTIONS.  Ch.  54,  §  1122 

any  manner,  any  artirles,  devices  or  parts  thereof  containing  and  employing 
or  embodying  the  said  invention  and  improvements  described  in  said  letters 

patent  No.  ,  and  claimed  in  the  claim  thereof,  and  from  counterfeiting 

or  from  imitating  the  said  invention  and  improvements  or  any  part  or  parts 
thereof  in  any  way,  or  from  infringing  upon  or  violating  the  said  letters 
patent  in  any  way  whatsoever; 

Witness  the  Honorable ,  Judge  of  the  district  court  of  the  United  States, 

this day  of  ,  1916,  and  in  the  140th  year  of  the  Independence  of  the 

United  States  of  America. 

[Seal]  Attest:  ,  Clerk. 


§§  1130-1131,  Ch.  55      MANUAL  OF  FEDERAL  PROCEDURE.  4:72 

CHAPTER  55. 

DISMISSAL  BY  PLAINTIFF. 

8EO. 

1130.  Generally  Plaintiff  may  Dismiss  at  any  Time  Before  Decree   on  the 

Merits. 

1131.  After    Master's    Report   Filed    Voluntary    Dismissal    by    Plaintiff    not 

Allowed. 

§  1130.  Generally  Plaintiff  may  Dismiss  at  Any  Time  Before 
Decree  on  the  Merits.  The  right  of  a  complainant  to  dismiss 
without  prejudice,  at  least  before  the  case  has  reached  a  stage 
where  the  court  could  render  a  final  decree  on  the  merits,  is  not 
subject  to  the  imposition  of  conditions  other  than  the  payment 
of  costs. 

A  party  is  protected  under  the  general  rules  of  evidence  in 
the  right  to  use  depositions  taken  in  a  former  case  between  the 
same  parties,  where  the  testimony  would  not  otherwise  be  pro- 
curable ;  but  the  relevancy  of  such  testimony  must  be  determined 
in  the  case  in  which  it  is  offered.  (Young  v.  Samuels  &  Bro. 
(D.  R.  I.),  232  Fed.  784,  and  cases  cited.) 

§  1131.  After  Master's  Report  Filed  Voluntary  Dismissal  by 
Plaintiff  not  Allowed.  After  the  reference  of  a  suit  to  a  master 
to  hear  and  determine  all  issues  of  fact  and  law,  and  after  the 
master  on  evidence  submitted  by  both  parties  had  made  his  re- 
port containing  a  number  of  findings,  including  a  general  one 
in  favor  of  defendants,  and  after  plaintiff  had  filed  exceptions 
thereto,  the  court  should  not  permit  plaintiff  to  dismiss  his  bill 
without  prejudice,  as  such  a  discontinuance  of  the  case  involved 
more  for  the  defendant  than  the  incidental  annoyance  of  a  second 
litigation  upon  the  same  subject  matter,  and  would  be  manifestly 
prejudicial  to  defendant,  since  it  deprived  him  of  the  benefit  of 
findings  in  his  favor  which  were  prima  facie  correct,  and  could 
not  be  set  aside  or  modified  unless  error  or  mistake  clearly  ap- 
peared. (Smith  v.  Carlisle  (5th  Cir.),  228  Fed.  666,  143  C.  C.  A. 
188.) 


473  DECREE — EQUITY  SUITS.  Oh.  56,  §  1140 


CHAPTER  56. 

DECREE— EQUITY  SUITS. 
SCO. 

1140.  Rules  as  to  Form  of  Decree. 

1141.  Findings. 

1142.  Drafting  the  Decree. 

1143.  Enforcement. 

1144.  Enforcement  on  Conditions. 

1145.  Decree  Outside  the  Issues  Invalid. 

1146.  Retaining  Case  to  Afford  Complete  Relief. 

1147.  Lien  of  Decree  not  Divested  by  Creation  of  a  New  District  or  Division 

Nor  by  the  Division  or  Transfer  of  Territory. 

§  1140.    Rules  as  to  Form  of  Decree. 

Equity  Rule  71.  Form  of  Decree.  "In  drawing  up  de- 
crees and  orders,  neither  the  bill  nor  answer  nor  other  plead- 
ings, nor  any  part  thereof,  nor  the  report  of  any  master,  nor 
any  other  prior  proceeding,  shall  be  recited  or  stated  in  the 
decree  or  order;  but  the  decree  and  order  shall  begin,  in  sub- 
stance, as  follows:  'This  cause  came  on  to  be  heard  (or  to  be 
further  heard,  as  the  case  may  be)  at  this  term,  and  was 
argued  by  counsel ;  and  thereupon,  upon  consideration  thereof, 
it  was  ordered,  adjudged,  and  decreed  as  follows,  viz.:'  ' 
(Here  insert  the  decree  or  order.)  (3  U.  S.  Comp.  Stats. 
1916,  §1536,  p.  2526;  Simkins'  Federal  Equity  Suit,  3d  ed., 
p.  584.) 

Equity  Rule  10.  Decree  for  Deficiency  in  Foreclosures,  etc. 
"In  suits  for  the  foreclosure  of  mortgages,  or  the  enforce- 
ment of  other  liens,  a  decree  may  be  rendered  for  any  balance 
that  may  be  found  due  to  the  plaintiff  over  and  above  the  pro- 
ceeds of  the  sale  or  sales,  and  execution  may  issue  for  the  col- 
lection of  the  same,  as  is  provided  in  Rule  8  when  the  decree 
is  solely  for  the  payment  of  money."  (3  U.  S.  Comp.  Stats. 
1916,  §  1536,  p.  2499;  Foster's  Federal  Practice,  5th  ed., 
p.  1273;  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  585.) 

Part  Equity  Rule  8.  "  .  .  .If  the  decree  be  for  the  per- 
formance of  any  specific  act,  as,  for  example,  for  the  execution 


§§  1141-1143,  Ch.  56      MANUAL  OP  FEDERAL  PROCEDURE.     '  474 

of  a  conveyance  of  land  or  the  delivering  up  of  deeds  or  other 
documents,  the  decree  shall,  in  all  cases,  prescribe  the  time 
within  which  the  act  shall  be  done.  .  .  .  '  (3  U.  S.  Comp. 
Stats.  1916,  §  1536,  p.  2498;  Foster's  Federal  Practice,  5th  ed., 
pp.  814,  1272,  1364;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  584,  590,  591.) 

Under  Rule  8  it  was  held  in  Richards  v.  Harrison  (S.  D.  Iowa), 
218  Fed.  134,  that  the  omission  of  a  recital  in  a  judgment  for  a 
writ  of  execution  was  immaterial  because  this  rule  provides  that 
when  the  judgment  is  for  the  payment  of  money  only  it  shall  be 
enforced  by  writ  of  execution. 

§1141.  Findings.  In  Liebing  v.  Matthews  (8th  Cir.),  216 
Fed.  1,  12,  132  C.  C.  A.  245,  the  court  said:  "There  is  no  rule  in 
equity  that  the  court  shall  in  its  decree  find  all  the  facts  necessary 
to  sustain  the  decree  except  where,  as  in  Peirsoll  v.  Elliott,  6  Pet. 
(U.  S.)  95,  8  L.  Ed.  332,  in  the  absence  of  a  finding  of  facts,  it 
would  be  impossible  to  tell  what  the  decree  in  fact  meant." 

§  1142.  Drafting  the  Decree.  The  decree  should  be  drawn 
by  the  solicitor  of  the  successful  party.  It  should  then  be  sub- 
mitted to  opposing  counsel  and  if  he  has  any  objections  not  ad- 
mitted by  counsel  drawing  the  decree,  such  objections  should  be 
noted  and  submitted  to  the  cojurt  for  settlement.  On  settlement 
of  objections,  or  if  none  are  made,  the  decree  is  presented  to  the 
judge  for  signature  and  delivered  to  the  clerk  for  filing  and  rec- 
ord in  the  equity  journal.  (Equity  Rule  3,  Cl.  3.) 

§  1143.    Enforcement. 

Equity  Rule  8.  Enforcement  of  Final  Decrees.  "Final 
process  to  execute  any  decree  may,  if  the  decree  be  solely  for 
the  payment  of  money,  be  by  a  writ  of  execution,  in  the  form 
used  in  the  district  court  in  suits  at  common  law  in  actions 
of  assumpsit.  If  the  decree  be  for  the  performance  of  any 
specific  act,  as,  for  example,  for  the  execution  of  a  convey- 
ance of  land  or  the  delivering  up  of  deeds  or  other  documents, 
the  decree  shall,  in  all  ca.c;c.s.  prescribe  the  time  within  which 


475  DECREE — EQUITY  SUITS.  Ch.  5G,  §  1144 

the  act  shall  be  clone,  of  which  the  defendant  shall  be  bound, 
•without  further  service,  to  take  notice;  and  upon  affidavit  of 
the  plaintiff,  filed  in  the  clerk's  office,  that  the  same  has  not 
been  complied  with  within  the  prescribed  time,  the  clerk  shall 
issue  a  writ  of  attachment  against  the  delinquent  party,  from 
\vhieh,  if  attached  thereon,  he  shall  not  be  discharged,  unless 
upon  a  full  compliance  with  the  decree  and  the  payment  of 
all  costs,  or  upon  a  special  order  of  the  court,  or  a  judge 
thereof,  upon  motion  and  affidavit,  enlarging  the  time  for 
the  performance  thereof.  If  the  delinquent  party  cannot  be 
found  a  writ  of  sequestration  shall  issue  against  his  estate, 
upon  the  return  of  twn  est  invents,  to  compel  obedience  to 
the  decree.  If  a  mandatory  order,  injunction,  or  decree  for 
the  specific  performance  of  any  act  or  contract  be  not  com- 
plied with,  the  court  or  a  judge,  besides,  or  instead  of,  pro- 
ceedings against  the  disobedient  party  for  a  contempt  or  by 
sequestration,  may  by  order  direct  that  the  act  required  to 
be  done,  be  done,  so  far  as  practicable,  by  some  other  person 
appointed  by  the  court  or  judge,  at  the  cost  of  the  disobedient 
party,  and  the  act,  when  so  done,  shall  have  like  effect  as  if 
done  by  him."  (3  U.  S.  Comp.  Stats.  1916,  §  1536.  p.  2498; 
Foster's  Federal  Practice,  5th  ed.,  pp.  209,  814;  1262,  1272, 
1345,  1364,  1385,  1387;  Simians'  Federal  Equity  Suit,  3d  ed., 
pp.  585,  590,  591,  593,  771.) 

Equity  Rule  9.  Writ  of  Assistance.  "When  any  decree 
or  order  is  for  the  delivery  of  possession,  upon  proof  made  by 
affidavit  of  a  demand  and  refusal  to  obey  the  decree  or  order, 
the  party  prosecuting  the  same  shall  be  entitled  to  a  writ  of 
assistance  from  the  clerk  of  the  court."  (3  U.  S.  Comp.  Stats. 
1916,  §  1536,  p.  2499;  Foster's  Federal  Practice,  5th  ed., 
pp.  1385,  1386;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  584, 
590,  592.) 

§  1144.  Enforcement  on  Conditions.  In  Union  Cent.  Life  Ins. 
Co.  v.  Drake  (8th  Cir.),  214  Fed.  536,  131  C.  C.  A.  82,  the  court 
held  that,  a  court  of  equity  may,  in  a  case  where  the  rules  and  prin- 
ciples of  equity  demand  it,  condition  its  grant  of  relief  sought  by 
the  plaintiff  with  the  enforcement  of  a  claim  or  equity  held  by  a 
defendant  which  by  reason  of  the  statute  of  limitations,  an  adjudi- 
cation, or  otherwise,  the  latter  could  not  enforce  in  any  other  way. 


§§  1145-1147,  Ch.  56     MANUAL  OP  FEDERAL  PROCEDURE.  47G 

§  1145.  Decree  Outside  the  Issues  Invalid.  In  Mitchell  v.  Hitch- 
man  Coal  &  Coke  Co.,  214  Fed.  685,  131  C.  C.  A.  425,  the  court 
held  that  a  decree  determining  that  a  labor  union  was  an  unlawful 
combination  or  conspiracy  in  restraint  of  trade  in  violation  of  the 
Sherman  Anti-Trust  Law  (Act  July  2,  1890,  c.  647,  26  Stats.  209), 
could  not  be  sustained  where  there  was  no  allegation  of  defend- 
ant's violation  of  such  law  in  the  pleadings. 

§  1146.  Retaining  Case  to  Afford  Complete  Relief.  In  St. 
Louis  etc.  Ry.  v.  Bellanw,  211  Fed.  172,  a  preliminary  injunction 
was  granted  upon  the  petition  of  a  railroad  company  enjoining 
the  enforcement  of  a  rate.  Later  the  bill  was  dismissed  and  the 
injunction  dissolved.  Held  that,  under  Equity  Rule  10,  provid- 
ing that  "every  person  not  being  a  party  in  any  cause  ...  in 
whose  favor  an  order  shall  have  been  made,  shall  be  enabled  to 
enforce  obedience  to  such  order  by  the  same  process  as  if  he  were 
a  party  to  the  cause,"  the  court  had  jurisdiction  to  retain  the 
cause  after  dismissal  of  the  bill  for  the  purpose  of  enforcing  the 
claims  of  all  shippers  and  passengers  under  the  bonds,  and  that  in 
aid  of  such  jurisdiction  it  had  power  to  enjoin  individual  claim- 
ants from  maintaining  separate  suits  in  the  state  courts. 

§1147.  Lien  of  Decree  not  Divested  by  Creation  of  a  New 
District  or  Division  nor  by  the  Division  or  Transfer  of  Territory. 
By  §  60,  Jud.  Code,  already  quoted  in  §  70,  supra,  it  is  provided 
that  the  lien  of  a  decree,  etc.,  shall  not  be  divested  by  a  change  of 
boundaries  of  any  territory,  and  that  a  certified  copy  thereof  may 
be  filed  in  the  proper  court  of  the  division  or  district  in  which  the 
property  is  located  after  such  transfer,  and  have  the  same  effect 
as  an  original. 


477  REIIEAHINQ.  Ch.  57,  §§  1160-1161 

CHAPTER  57. 

BEHEARING. 

SEO. 

1160.  Correction  of  Mistakes — Rehearing — Equity  Rules  72  and  69. 

1161.  Allowance  of  Petition  for  Rehearing  at  Same  Term  at  Which  Decree 

Entered  Suspends  Decree  Until  Disposition  of  Petition. 

1162.  Petition  for  Rehearing  on  Newly  Discovered  Evidence. 

1163.  Rehearing  not  Granted  Where  New  Evidence  Known  When  Briefs 

were  Filed. 

1164.  Granting  a  Rehearing  a  Matter  of  Discretion. 

§  1160.    Correction  of  Mistakes — Rehearing — Equity  Rules  72 
and  69. 

Equity  Rule  72.  "Clerical  mistakes  in  decrees  or  decretal 
orders,  or  errors  arising  from  any  accidental  slip  or  omission, 
may,  at  any  time  before  the  close  of  the  term  at  which  final 
decree  is  rendered,  be  corrected  by  order  of  the  court  or  a 
judge  thereof,  upon  petition,  without  the  form  or  expense  of 
a  hearing."  (3  U.  S.  Cpmp.  Stats.  1916,  §1536,  p.  2526; 
Foster's  Federal  Practice,  5th  ed.,  §444,  p.  1392;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  p.  585.) 

Petition  for  Rehearing. 

Equity  Rule  69.  "Every  petition  for  a  rehearing  shall  con- 
tain the  special  matter  or  cause  on  which  such  rehearing  is 
applied  for,  shall  be  signed  by  counsel,  and  the  facts  therein 
stated,  if  not  apparent  on  the  record,  shall  be  verified  by  the 
oath  of  the  party  or  by  some  other  person.  No  rehearing  shall 
be  granted  after  the  term  at  which  the  final  decree  of  the 
court  shall  have  been  entered  and  recorded,  if  an  appeal  lies 
to  the  circuit  court  of  appeals  or  the  Supreme  Court.  But  if 
no  appeal  lies,  the  petition  may  be  admitted  at  any  time  before 
the  end  of  the  next  term  of  the  court,  in  the  discretion  of  the 
court."  (3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2525.) 

§  1161.    Allowance  of  Petition  for  Rehearing  at  Same  Term 

^at  Which  Decree  Entered  Suspends  Decree  Until  Disposition  of 

Petition.     In  United  States  v.  Midway  Northern  Oil  Co.   (S.  D. 

Cal.),  232  Fed.  619,  the  court  held  that  while  a  court  is  without 


§  1162,  Cll.  57         MANUAL   OF   FEDERAL  PROCEDURE.  478 

power  to  entertain  a  petition  for  rehearing  after  the  terra  at 
which  final  decree  was  entered,  where  a  petition  is  filed  during 
the  term  by  leave  of  court,  the  decree  does  not  become  final  until 
the  petition  is  disposed  of. 

§  1162.  Petition  for  Rehearing  on  Newly  Discovered  Evidence. 
In  Sheeler  v.  Alexander,  211  Fed.  544,  the  court  held  under 
Equity  Rule  69  that  a  rehearing  in  an  infringement  suit  after  an 
interlocutory  decree,  on  the  ground  of  newly  discovered  evidence, 
may  properly  be  had  upon  petition. 

To  entitle  a  defendant  to  a  rehearing  on  the  ground  of  newly 
discovered  evidence  it  must  be  shown :  (1)  That  he  exercised  due 
and  reasonable  diligence  before  the  hearing  to  procure  the  evi- 
dence sought  to  be  introduced;  and  (2)  that  the  new  evidence  is 
material  in  determining  the  issues  raised  by  the  pleadings  and  is 
probably  true,  and  on  such  questions  counter-affidavits  may  be 
received. 

Day,  J.,  said  (pp.  546,  547)  : 

"While  the  cases  are  not  fully  in  accord  as  to  the  proper 
procedure  to  be  followed  when  an  application  is  made  for  a 
rehearing  on  account  of  newly  discovered  evidence,  it  is  ap- 
parent from  the  decisions  that  if  a  decree  has  been  entered  in 
the  lower  courts,  and  an  appeal  has  been  taken  therefrom  to 
the  Circuit  Court  of  Appeals,  so  that  the  App*ellate  Court  has 
jurisdiction,  the  proper  proceeding  is  for  the  petitioner  to  file 
a  petition  duly  verified  and  addressed  to  the  Appellate  Court, 
and  praying  for  leave  to  file  in  the  lower  court  a  supplemental 
bill  in  the  nature  of  a  bill  of  review. 

"Inasmuch  as  rehearings  are  granted  only  upon  such 
grounds  as  would  authorize  a  new  trial  in  an  action  at  law, 
that  is,  for  newly  discovered  evidence,  or  errors  of  law  ap- 
parent upon  the  record,  it  would  seem  to  be  a  proper  course 
of  procedure  in  the  filing  of  a  petition  for  a  rehearing  where 
only  an  interlocutory  decree  has  been  entered,  and  there  has 
been  no  appeal  taken  to  the  Circuit  Court  of  Appeals,  for  the 
party  seeking  a  rehearing  to  file  its  petition  with  the  clerk  of 
the  court,  and  if  he  relies  upon  newly  discovered  evidence,  he 
should  set  forth  this  evidence  in  the  bill  as  far  as  possible  in 
the  petition  for  rehearing,  and.  in  any  event,  in  affidavits  filed 
with  the  petition  for  rehearing  and  accompanying  it.  After 


47y  REHEARING.  Ch.  57,  §§  1 103  -1 104 

filing  this  petition  for  a  rehearing  and  the  affidavits,  he  should 
then  obtain  an  order  upon  the  adverse  party  to  show  cause  at 
some  later  date  why  his  prayer  for  a  rehearing  should  not  be 
granted.  The  adverse  party  may  then  answer  the  petition 
for  a  rehearing,  and  upon  the  petition  and  answer  the  applica- 
tion may  be  heard.  If  the  application  for  a  rehearing  is 
granted,  then  the  petitioning  party  would  be  required  to  file 
either  a  supplemental  bill  or  answer,  as  the  case  might  be, 
in  order  that  the  hearing  might  be  had  on  the  original  bill  and 
answer  and  on  the  supplemental  pleadings." 

§  1163.  Rehearing  not  Granted  Where  New  Evidence  Known 
When  Briefs  were  Filed.  In  American  Hoist  &  Derrick  Co.  v. 
Nancy  Hawks  Hay  Press  &  Foundry  Co.  (N.  D.  Ga.),  224  Fed. 
524,  the  court  held  that  a  rehearing  in' an  equity  case  will  not  be 
granted  to  allow  the  introduction  of  new  evidence,  where  such 
evidence  was  known  at  the  time  the  briefs  were  filed,  but  no  mo- 
tion was  made  to  suspend  or  delay  the  case  for  the  purpose  of  in- 
troducing such  evidence. 

§1164.  Granting  a  Rehearing  a  Matter  of  Discretion,  In 
Sheeler  v.  Alexander  (above  quoted.  §  1162),  211  Fed.  544,  at  page 
545,  the  court  on  a  petition  for  rehearing  under  Equity  Rule  69 
of  an  infringement  suit  on  the  ground  of  newly  discovered  evi- 
dence, after  referring  to  Equity  Rule  18  abolishing  technical 
forms  of  pleading,  Equity  Rule  19  allowing  the  court  to  disregard 
any  errors  not  affecting  substantial  rights  of  the  parties,  Equity 
Rule  34  permitting  supplemental  pleadings,  and  Equity  Rule  46 
providing  for  oral  testimony  in  open  court  at  the  trial,  said : 

"It  would  seem  to  be  the  spirit  of  these  new  E'quity  Rules 
that  they  were  drawn  by  the  Supreme  Court  with  the  intent 
of  leaving  the  judge  free  to  adjust  matters  in  the  interests  of 
substantial  justice,  as  he  sees  fit.  unhampered  by  precedent  and 
by  technical  definitions  and  distinctions." 


§§  1180-1181,  Ch.  58      MANUAL   OF   FEDEKAJL   PROCEDURE.  480 


CHAPTER  58. 

BILL  OF  REVIEW. 

sic. 

1180.  Function  of  Bill  of  Review. 

1181.  Time  for  Filing — Leave  of  Court. 

1182.  Form  of  Bill  of  Review. 

§1180.  Function  of  Bill  of  Review.  A  bill  of  review  is  to 
correct  errors  apparent  on  the  face  of  the  record,  and  for  newly 
discovered  evidence  after  the  term,  or  for  new  matter  arising 
since  the  decree,  or  for  fraud  in  procuring  the  decree.  If  a  peti- 
tion for  rehearing  can  be  filed  within  the  term  in  which  the  decree 
was  rendered,  that  would  be  the  proper  proceeding,  but  if  it  is 
impossible  to  reach  the  matter  by  petition  for  rehearing  a  bill  of 
review  may  be  filed  after  term. 

§  1181.  Time  for  Filing— Leave  of  Court.  After  the  end  of 
the  term  at  which  a  decree  is  rendered,  it  becomes  an  absolute 
finality  and  the  court  has  no  power  to  change,  revise  or  grant 
other  relief  against  it  in  the  cause  in  which  it  was  rendered,  ex- 
cept that  it  may  do  so  for  errors  of  law,  appearing  on  the  face 
of  the  decree,  which  rendered  it  void. 

A  bill  of  review  may  then  be  filed  in  the  nature  of  an  original 
bill,  and  this  without  leave  of  court.  (Farmers  &  Merchants' 
Bank  of  Phoenix  v.  Arizona  Mutual  Savings  &  Loan  Assn.  (9th 
Cir.),  220  Fed.  1,  135  C.  C.  A.  577;  In  re  Brown  (S.  D.  N.  Y.), 
213  Fed.  701.) 

A  bill  of  review  must  be  filed  within  the  time  allowed  for  ap- 
peal from  such  decree.  (Lewis  v.  Holmes  (7th  Cir.),  224  Fed. 
410,  140  C.  C.  A.  8.) 


481  BILL  OF  REVIEW.  Ch.  58,  §  1182 

§  1182.    Form  of  Bill  of  Review. 

[Title  of  the  Case.]               [Title  of  the  Court.] 
To  the  District  Judge  for  the  District  of  •. 

Petitioner,  as  plaintiff,  vs.  [name  all  other  parties  in  the  original  suit],  as 
defendants. 

Your  petitioner  shows  unto  your  honors  that  on  the  day  of  , 

A.  D.  19 — ,  herein  defendant  filed  hia  complaint  in  the  United  States 

District  Court  for  the  District  of  ,  against  your  petitioner,  alleg- 
ing [set  out  substance  of  complaint]. 

That  your  petitioner  appeared  and  answered  said  bill  on  the  day  of 

,  A.  D.  19 — ,  as  follows  [setting  out  substance  of  answer] ;  that  cause 

was  heard  on  the  day  of ,  A.  D.  19 — ,  and  a  decree  was  rendered 

and  recorded  in  said  cause  as  follows  [quote  decree]. 

That  said  decree  is  erroneous  and  it  would  be  inequitable  to  permit  it 
to  stand  as  entered  in  this  cause  because  [set  out  errors  complained  of]. 

That  no  decree  should  have  been  rendered,  but  the  bill  should  have  been 
dismissed. 

That  because  of  the  error  thus  apparent  your  petitioner  prays  that  said 
decree  be  reviewed  and  reversed,  and  no  further  proceedings  taken  thereon, 
and  your  petitioner  prays  that  a  subpoena  be  directed  to  the  said  de- 
fendant, commanding  him  on  the  day  of  ,  19 — ,  to  show  cause 

why  the  decree  should  not  be  reviewed  and  reversed. 

,  Solicitor. 

State  of  , 

County  of  

I, ,  plaintiff  in  the  foregoing  petition  for  review,  being  duly  sworn 

state  that  I  have  read  the  same  and  know  the  contents  thereof,  and  that 
the  matters  and  things  therein  alleged  are  true. 

,   Plaintiff. 

Sworn  to  before  me  this day  of ,  A.  D.  19 — . 

,  Notary. 

Manual — 81 


§§  1200-1201,  Cll.  59      MANUAL.   OF   .FEDERAL,  PROCEDURE.  482 

•K% 

CHAPTER  59. 

CRIMINAL  JURISDICTION. 
SEC. 

1200.  Criminal  Jurisdiction  of  the  District  Court. 

1201.  Places  Within  Which  the  Criminal  Laws  of  the  United  States  Apply. 

1202.  Penal  Laws  Enforced  in,  and  Governing  the  Federal  Courts. 

1203.  Adoption  of  State  Penal  Laws  for  Reserved  Federal  Territory  Within 

State  Boundaries. 

1204.  State  and  Federal  Jurisdictions  of  Offenses. 

1205.  Jurisdiction  of  State  Courts  Under  State  Laws  not  Affected. 

1206.  Venue  of  Criminal  and  Penal  Prosecutions. 

1207.  Statutes  of  Limitations — Criminal  Cases. 

§  1200.    Criminal  Jurisdiction  of  the  District  Court. 

Par.  Second,  §  24,  Jud.  Code.  ' '  Of  all  crimes  and  offenses 
cognizable  under  authority  of  the  United  States."  (36  Stats. 
1091;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  838;  U.  S.  Comp.  Stats. 
1916,  §  991,  par.  2,  p.  758.) 

Par.  Ninth,  §  24,  Jud.  Code.  "Of  all  suits  and  proceedings 
for  the  enforcement  of  penalties  and  forfeitures  incurred  under 
any  law  of  the  United  States."  (36  Stats.  1092 ;  4  Fed.  Stats. 
Ann.  2d  ed.,  p.  1048;  1  U.  S.  Comp.  Stats.  1916,  §  991  (9), 
p.  800.) 

This  jurisdiction  is  exclusive  of  the  state  courts  under  paragraphs 
first  and  second  of  §  256,  Jud.  Code.  (36  Stats.  1161 ;  5  Fed.  Stats. 
Ann.,  p.  921;  2  U.  S.  Comp.  Stats.,  §  1233,  pp.  1841,  1848.) 

§  1201.  Places  Within  Which  the  Criminal  Laws  of  the  United 
States  Apply. 

§  311,  Cr.  Code.  "Except  as  otherwise  expressly  provided, 
the  offenses  denned  in  this  chapter  shall  be  punished  as  here- 
inafter provided,  when  committed  within  any  territory  or  dis- 
trict or  within  or  upon  any  place  within  the  exclusive  juris- 
diction of  the  United  States."  (Fed.  Stats.  Ann.,  2d  ed., 
"Penal  Laws";  10  U.  S.  Comp.  Stats.  1916,  §  10,484.) 

§272,  Cr.  Code.  "The  crimes  and  offenses  denned  in  this 
chapter  shall  be  punished  as  herein  prescribed : 


483  CRIMINAL,  JURISDICTION.  Ch.  59,  §  1202 

"First.  When  committed  upon  the  high  seas,  or  on  any 
other  waters  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States  and  out  of  the  jurisdiction  of  any  par- 
ticular state,  or  when  committed  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States  and  out  of  the  juris- 
diction of  any  particular  state  on  board  any  vessel  belonging 
in  whole  or  in  part  to  the  United  States  or  any  citizen  thereof, 
or  to  any  corporation  created  by  or  under  the  laws  of  the  United 
States,  or  of  any  state,  territory,  or  district  thereof. 

"Second.  When  committed  upon  any  vessel  registered, 
licensed,  or  enrolled  under  the  laws  of  the  United  States,  and 
being  on  a  voyage  upon  the  waters  of  any  of  the  Great  Lakes, 
namely:  Lake  Superior,  Lake  Michigan,  Lake  Huron,  Lake 
Saint  Glair,  Lake  Erie,  Lake  Ontario,  or  any  of  the  waters 
connecting  any  of  said  lakes,  or  upon  the  River  Saint  Lawrence 
where  the  same  constitutes  the  international  boundary  line. 

"Third.  When  committed  within  or  on  any  lands  reserved  or 
acquired  for  the  exclusive  use  of  the  United  States,  and  under 
the  exclusive  jurisdiction  thereof,  or  any  place  purchased  or 
otherwise  acquired  by  the  United  States  by  consent  of  the  legis- 
lature of  the  state  in  which  the  same  shall  be,  for  the  erection 
of  a  fort,  magazine,  arsenal,  dockyard,  or  other  needful 
building. 

"Fourth.  On  any  island,  rock,  or  key  containing  deposits 
of  guano,  which  may,  at  the  discretion  of  the  President,  be 
considered  as  appertaining  to  the  United  States."  (Fed.  Stats. 
Ann.,  2d  ed.,  "Penal  Laws";  10  U.  S.  Comp.  Stats.  1916; 
§  10,445.) 

§  310,  Cr.  Cod*.  "The  words  'vessel  of  the  United  States/ 
wherever  they  occur  in  this  chapter,  shall  be  construed  to  mean 
a  vessel  belonging  in  whole  or  in  part  to  the  United  States,  or 
any  citizen  thereof,  or  any  corporation  created  by  or  under 
the  laws  of  the  United  States,  or  of  any  state,  territory,  or  dis- 
trict thereof."  (Fed.  Stats.  Ann.,  2d  ed.,  "Penal  Laws";  10 
U.  S.  Comp.  Stats.  1916,  §  10,483.) 

§  1202.    Penal  Laws  Enforced  in,  and  Governing  the  Federal 
Courts. 

§752,  Rev.  Stats.  "The  jurisdiction  in  civil  and  criminal 
matters  conferred  on  the  district  and  circuit  courts  by  the  pro- 
visions of  this  title,  and  of  title  'Civil  Rights,'  and  of  title 


§§  1203-1204,  Ch.  59     MANUAL  OP  FEDERAL  PROCEDURE.  48-1 

*  Crimes,'  for  the  protection  of  all  persons  in  the  United  States 
in  their  civil  rights,  and  for  their  vindication,  shall  be  exercised 
and  enforced  in  conformity  with  the  laws  of  the  United  States, 
so  far  as  such  laws  are  suitable  to  carry  the  same  into  effect; 
but  in  all  cases  where  they  are  not  adapted  to  the  object,  or 
are  deficient  in  the  provisions  necessary  to  furnish  suitable 
remedies  and  punish  offenses  against  law,  the  common  law, 
as  modified  and  changed  by  the  Constitution  and  statutes  of 
the  state  wherein  the  court  having  jurisdiction  of  such  civil 
or  criminal  cause  is  held,  so  far  as  the  same  is  not  inconsistent 
with  the  Constitution  and  laws  of  the  United  States,  shall  be 
extended  to  and  govern  the  said  courts  in  the  trial  and  dis- 
position of  the  cause,  and,  if  it  is  of  a  criminal  nature,  in  the 
infliction  of  punishment  on  the  party  found  guilty."  (6  Fed. 
Stats.  Ann.,  2d  ed.,  p.  120;  3  U.  S.  Comp.  Stats.  1916,  §  1542.) 

§  1203.  Adoption  of  State  Penal  Laws  for  Reserved  Federal 
Territory  Within  State  Boundaries. 

§289,  Cr.  Code.  "Whoever  within  the  territorial  limits  of 
any  state,  organized  territory,  or  district,  but  within  or  upon 
any  of  the  places  now  existing  or  hereafter  reserved  or  ac- 
quired, described  in  section  two  hundred  and  seventy-two  of 
this  act,  shall  do  or  omit  the  doing  of  any  act  or  thing  which 
is  not  made  penal  by  any  law  of  Congress,  but  which,  if  com- 
mitted or  omitted  wdthin  the  jurisdiction  of  the  state,  territory, 
or  district  in  which  such  place  is  situated,  by  the  laws  thereof 
now  in  force,  would  be  penal,  shall  be  deemed  guilty  of  a  like 
offense  and  be  subject  to  a  like  punishment;  and  every  such 
state,  territorial,  or  district  law  shall,  for  the  purpose  of  this 
section,  continue  in  force,  notwithstanding  any  subsequent 
repeal  or  amendment  thereof  by  any  such  state,  territory,  or 
district."  (Fed.  Stats.  Ann.,  2d  ed.,  "Penal  Laws";  10  U.  S. 
Comp.  Stats.  1916,  §  10,462.) 

§  1204.  State  and  Federal  Jurisdictions*  of  Offenses.  Except 
within  reserved  territory  as  set  out  in  the  preceding:  section  under 
§  289,  Cr.  Code,  the  federal  courts  do  not  execute  the  penal  laws 
of  a  state ;  nor  have  they  any  common-law  criminal  jurisdiction.1 

1  United  States  v.  .Britton,  108  U.  S.  199;  27  L.  Ed.  698,  2  Sup.  Ct.  531; 
Benson  v.  McMahon,  127  U.  S.  457,  32  L.  Ed.  234,  8  Sup.  Ct.  1240;  Jones  v. 


485  CRIMINAL  JURISDICTION.  Ch.  59,  §  1205 

In  criminal  cases  the  law  administered  is  entirely  federal,  pro- 
vided and  prescribed  by  Congress  under  the  limitations'  of  the  Con- 
stitution.2 The  statute  adopting  state  laws  as  rules  of  decision  does 
not  apply  to  criminal  prosecutions  in  the  federal  courts.3  The  laws 
of  evidence  in  federal  criminal  trials  are  those  that  existed  in  the 
states  when  the  judiciary  act  was  adopted  in  1789  and  as  modified 
by  subsequent  acts  of  Congress.4 

The  saline  act  may  be  an  offense  against  both  state  and  federal 
laws.5  But  this  does  not  prevent  the  state  court  taking  jurisdiction 
of  and  punishing  the  act  done  as  an  offense  against  the  state ;  nor 
a  territory  from  punishing  an  act  also  punishable  under  federal 
law.6  So  long  as  the  act  done  is  within  the  punishing  power  of 
both  state  and  nation,  the  fact  that  the  state  courts  may  not  take 
jurisdiction  of  the  crime  as  denounced  by  the  federal  law  does  not 
prevent  their  punishing  it  under  the  state  law.7  In  a  sense  there 
are  two  distinct  crimes  involved  in  such  cases  ;8  and  an  acquittal  or 
conviction  of  one  does  not  bar  trial  for  the  other  on  the  ground  of 
former  jeopardy.8 

§  1205.  Jurisdiction  of  State  Courts  Under  State  Laws  not 
Affected. 

§  326,  Cr.  Code.    "Nothing  in  this  title  shall  be  held  to  take 
away  or  impair  the  jurisdiction  of  the  courts  of  the  several 

United  States,  137  U.  S.  202,  34  L.  Ed.  691,  11  Sup.  Ct.  80;  United  States 
v.  Eaton,  144  U.  S.  677,  36  L.  Ed.  591,  12  Sup.  Ct.  764;  United  States  v.  Wil- 
son, 3  Blatchf.  (N.  S.)  435,  438,  Fed.  Cas.  No.  16,731;  United  States  v. 
Plumer,  3  Cliff.  28,  Fed.  Cas.  No.  16,056. 

2  United  States  v.  Reid,  12  How.  (U.  S.)  361,  363,  13  L.  Ed.  1023. 

3  Ibid. 

4  7ft id;  Logan  v.  United  States,  144  U.  S.  263,  36  L.  Ed.  429,  12  Sup.  Ct. 
617;  United  States  v.  Hall,  53  Fed.  353. 

5  United  States  v.  Marigold,  9  How.  (U.  S.)  569,  13  L.  Ed.  261;  Fox  v. 
Ohio,  5  How.  (U.  S.)  433,  12  L.  Ed.  223;  Moore  v.  Illinois,  14  How.  (U.  S.)  19, 
14  L.  Ed.  306;  Ex  parte  Siebold,  100  U.  S.  390,  25  L.  Ed.  724;  United  States  v. 
Wells,  28  Fed.  Cas.  No.  16,665;  State  v.  Kirkpatrick,  32  Ark.  117,  121;  People 
v.  Welch,  141  N.  Y.  2(56,  38  Am.  St.  Rep.  793,  24  L.  B.  A.  117,  36  N.  E.  328. 

e  Cross  v.  'North  Carolina,  132  U.  S.  139,  33  L.  Ed.  290,  10  Sup.  Ct.  49; 
Crossley  v.  California,  168  U.  S.  641,  42  L.  Ed.  610,  18  Sup.  Ct.  242. 

7  Pettibone  v.  United  States,  148  U.  S.  197,  37  L.-  Ed.  419,  13  Sup.  Ct.  542. 

8  United  States  v.  Barnhart,  22  Fed.  285,  10  Sawy.  491;  State  v.  Oleeon, 
26  Minn.  507,  5  N.  W.  959. 

»  State  v.  Sly,  4  Or.  277,  279;  United  States  v.  Amy,  14  Md.  149,  note,  4 
Quart.  Law  J.  163,  Fed.  Cas.  No.  14,445;  Carter  v.  McClaughry,  183  U.  S.  365, 
46  L.  Ed.  236,  22  Sup.  Ct.  181. 


§  1206,  Ch.  59         MANUAL  OP  FEDERAL  PROCEDURE.  486 

states  under  the  laws  thereof."     (Fed.   Stats.   Ann.,  2d  ed., 
"Penal  Laws";  10  U.  S.  Coxnp.  Stats.  1916,  §  10,500.) 

The  making  of  certain  offenses  against  the  laws  of  the  United 
States  punishable  does  not  prevent  the  states  from  taking  hold 
of  any  offenses  which  may  be  involved  that  are  contrary  to  state 
laws,  and  not  cognizable  under  the  United  States  laws.10 

§  2,  Act  February  13,  1913,  c.  50.  (Act  punishing  larceny 
and  asportation  of  interstate  shipments.)  "That  nothing  in 
this  act  shall  be  held  to  take  away  or  impair  the  jurisdiction 
of  the  courts  of  the  several  states  under  the  laws  thereof ;  and 
a  judgment  of  conviction  or  acquittal  on  the  merits  under  the 
laws  of  any  state  shall  be  a  bar  to  any  prosecution  hereunder 
for  the  same  act  or  acts."  (37  Stats.  670;  4  Fed.  Stats.  Ann., 
p.  575 ;  8  U.  S.  Comp.  Stats.  1916,  §  8604,  p.  9288.) 
j-.-ot  :'&!  iw/flrj  rfj^i  Manoipfj  .=>«  r>mnu  o'ffojto  r:v 

§  1206.  Venue  of  Criminal  and  Penal  Prosecutions.  This  sub- 
ject is  treated  in  §§  75,  76,  77,  78  and  79,  chapter  4,  supra,  and  is 
only  summarized  here. 

Capital  offenses  in  the  county  where  the  offense  is  committed, 
where  that  can  be  done  without  great  inconvenience  (§40,  Jud. 
Code). 

Offenses  on  the  high  seas  or  elsewhere  out  of  the  jurisdiction  of 
a  particular  state  or  district,  in  the  district  where  the  offender  is 
found  or  first  brought  (§  41,  Jud.  Code). 

Larceny,  etc.,  of  interstate  shipments  "in  any  district  wherein 
the  crime  shall  have  been  committed."  Asporting  such  goods  is  a 
separate  offense  and  "prosecutions  therefor  may  be  instituted  in 
any  district  into  which  such  freight,  express,  baggage,  goods,  or 
chattels  shall  have  been  removed  or  into  which  they  shall  have  been 
brought  by  such  offender."  (Act  February  13,  1913,  c.  50,  37 
Stats.  670,  of  which  §  2  is  quoted  in  §  1205,  above.) 

Offenses  committed  in  two  districts,  in  either  district  (§42,  Jud. 
Code). 

Sale  of  arms  and  intoxicants  on  the  Pacific  islands  deemed  com- 
mitted on  high  seas  or  vessel  belonging  to  United  States  (§  309,  Cr. 

10  Ex  parte  Houghton,  8  Fed.  897. 


487  CRIMINAL  JURISDICTION.  Ch.  59,  §  120? 

Code).  Vessel  is  defined  in  §  310,  Cr.  Code,  quoted  in  the  last  part, 
§  1201  above. 

Pecuniary  penalties  and  forfeitures  where  they  accrue  or  the 
offender  is  found  (§43,  Jud.  Code). 

Seizures  made  on  high  seas  for  forfeitures,  where  the  property 
is  seized  (§  45,  Jud.  Code). 

Condemnation  of  insurrectionary  property  where  the  same  is 
seized  or  taken  and  proceedings  first  instituted  (§46,  Jud.  Code). 

Seizures  on  embargo  or  insurrection  in  any  district  into  which 
the  property  so  seized  may  be  taken  and  proceedings  instituted 
(§47,  Jud.  Code). 

§  1207.  Statutes  of  Limitations — Criminal  Cases.  Statutes  of 
limitations  is  the  general  subject  of  chapter  10,  supra.  Limitations 
as  to  capital  offenses  are  set  out  in  §  231,  supra;  offenses  not  capital, 
§§  232,  233 ;  under  the  customs  revenue  laws,  §  239 ;  under  internal 
revenue  laws,  §  235 ;  seduction  of  female  passenger,  §  236 ;  violations 
of  the  naturalization  laws,  §  237. 


§§  1220-1221,  Ch.  60     MANUAL  OF  FEDERAL,  PROCEDURE.  488 


CHAPTER  60. 

GRAND  JURY. 

SEC. 

1220.  When  Grand  Jury  Summoned. 

1221.  Grand  Jury  to  have  not  Less  Than  Sixteen  nor  More  Than  Twenty-thre* 

Members — Talesmen. 

1222.  Foreman  of  Grand  Jury. 

1223.  Discharge  of  Grand  Juries. 

1224.  Grand  Jury  Indictments  by  at  Least  Twelve  Jurors. 

§  1220.    When  Grand  Jury  Summoned. 

§  284,  Jud.  Code  (Re-enacting  §  810,  Rev.  Stats.,  as  amended 
Act  March  28,  1910).  "No  grand  jury  shall  be  summoned  to 
attend  any  district  court  unless  the  judge  thereof,  in  his  own 
discretion  or  upon  a  notification  by  the  district  attorney  that 
such  jury  will  be  needed  orders  a  venire  to  issue  therefor.  If 
the  United  States  attorney  for  any  district  which  has  a  city 
or  borough  containing  at  least  three  hundred  thousand  in- 
habitants shall  certify  in  writing  to  the  district  judge,  or  the 
senior  district  judge  of  the  district,  that  the  exigencies  of  the 
public  service  require  it,  the  judge  may,  in  his  discretion,  also 
order  a  venire  to  issue  for  a  second  grand  jury.  And  said 
court  may  in  term  order  a  grand  jury  to  be  summoned  at  such 
time,  and  to  serve  such  time  as  it  may  direct,  whenever,  in  its 
judgment,  it  may  be  proper  to  do  so.  But  nothing  herein  shall 
operate  to  extend  beyond  the  time  permitted  by  law  the  im- 
prisonment before  indictment  found  of  a  person  accused  of 
a  crime  or  offense,  or  the  time  during  which  a  person  so  ac- 
cused may  be  held  under  recognizance  before  indictment 
found."  (36  Stats.  1165;  5  Fed.  Stats.  Ann.  2d  ed.,  p.  1075; 
2  U.  S.  Comp.  Stats.  1916,  §  1261;  Foster's  Federal  Practice, 
5th  ed.,  p.  1695.) 

§  1221.     Grand  Jury  to  have  not  Less  Than  Sixteen  nor  More 
Than  Twenty-three  Members — Talesmen. 

§282,  Jud.  Code  (Re-enacting  §  808,  Rev.  Stats.).  "Every 
grand  jury  impaneled  before  any  district  court  shall  consist 
of  not  less  than  sixteen  nor  more  than  twenty-three  persons. 


489  GRAND  JURY.  Ch.  60,  §§  1222-1224 

If  of  the  persons  summoned  less  than  sixteen  attend,  they  shall 
be  placed  on  the  grand  jury,  and  the  court  shall  order  the 
marshal  to  summon,  either  immediately  or  for  a  day  fixed, 
from  the  body  of  the  district,  and  not  from  the  bystanders,  a 
sufficient  number  of  persons  to  complete  the  grand  jury.  And 
whenever  a  challenge  to  a  grand  juror  is  allowed,  and  there 
are  not  in  attendance  other  jurors  sufficient  to  complete  the 
grand  jury,  the  court  shall  make  a  like  order  to  the  marshal 
to  summon  a  sufficient  number  of  persons  for  that  purpose." 
(36  Stats.  1165;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1074;  2  U.  S. 
Comp.  State.  1916,  §  1259;  Foster's  Federal  Practice,  5th  ed., 
p.  1698.) 

§  1222.    Foreman  of  Grand  Jury. 

§  283,  Jud.  Code  (Re-enacting  §  809,  Eev.  Stats.}.  "From  the 
persons  summoned  and  accepted  as  grand  jurors,  the  court 
shall  appoint  the  foreman,  who  shall  have  power  to  admin- 
ister oaths  and  affirmations  to  witnesses  appearing  before  the 
grand  jury."  (36  Stats.  1165;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  1075;  2  U.  S.  Comp.  Stats.  1916,  §  1260.) 

§  1223.    Discharge  of  Grand  Juries. 

§285,  Jud.  Code  (Re-enacting  §811,  Rev.  Stats.).  "The 
district  courts,  the  district  courts  of  the  territories,  and  the 
supreme  court  of  the  District  of  Columbia  may  discharge  their 
grand  juries  whenever  they  deem  a  continuance  of  the  sessions 
of  such  juries  unnecessary."  (36  Stats.  1166;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  1077;  2  U.  S.  Comp.  Stats.  1916,  §1262; 
Foster's  Federal  Practice,  5th  ed.,  p.  1695.) 

§  1224.     Grand  Jury  Indictments  by  at  Least  Twelve  Jurors. 

§  1021,  Rev.  Stats.  "No  indictment  shall  be  found,  nor 
shall  any  presentment  be  made,  without  the  concurrence  of 
at  least  twelve  grand  jurors."  (2  Fed.  State.  Ann.,  2d  ed., 
p.  675 ;  3  U.  S.  Comp.  State.  1916,  §  1685.) 


§§  1240-124:1,  Ch.  61   MANUAL  OF  FEDERAL  PROCEDURE.         490 


CHAPTEK  61. 

INDICTMENTS. 

SEC. 

1240.  Form  of  Indictment  for  Perjury. 

1241.  Form  of  Indictment  for  Subornation  of  Perjury. 

1242.  Form  of  Indictment  Before  a  Navy  Court-martial. 

1243.  Joining  Charges   Against  a  Person  in   One   Indictment — Consolidation 

of  Indictments. 

1244.  Defects  of  Form  in  Indictment — Immaterial  Unless  Prejudicial. 

1245.  Judgment  Bespondeat  Ouster  on  Demurrer  to  an  Indictment. 

§  1240.    Form  of  Indictment  for  Perjury. 

§  5396,  Rev.  Stats.  ' '  In  every  presentment  or  indictment 
prosecuted  against  any  person  for  perjury,  it  shall  be  sufficient 
to  set  forth  the  substance  of  the  offense  charged  upon  the  de- 
fendant, and  by  what  court,'  and  before  whom  the  oath  was 
taken,  averring  such  court  or  person  to  have  competent  au- 
thority to  administer  the  same,  together  with  the  proper  aver- 
ment to  falsify  the  matter  wherein  the  perjury  is  assigned, 
without  setting  forth  the  bill,  answer,  information,  indictment, 
declaration,  or  any  part  of  any  record  or  proceeding,  either 
in  law  or  equity,  or  any  affidavit,  deposition,  or  certificate, 
other  than  as  hereinbefore  stated,  and  without  setting  forth 
the  commission  or  authority  of  the  court  or  person  before  whom 
the  perjury  was  committed."  (Fed.  Stats.  Ann.,  2d  ed.,  "Per- 
jury"; 3  U.  S.  Comp.  Stats.  1916,  §  1687.) 

§  1241.     Form  of  Indictment  for  Subornation  of  Perjury. 

§  5397,  Rev.  Stats.  "In  every  presentment  or  indictment 
for  subornation  of  perjury  it  shall  be  sufficient  to  set  forth 
the  substance  of  the  offense  charged  upon  the  defendant, 
without  setting  forth  the  bill,  answer,  information,  indict- 
ment, declaration,  or  any  part  of  any  record  or  proceeding, 
either  in  law  or  equity,  or  any  affidavit,  deposition,  or  cer- 
tificate, and  without  setting  forth  the  commission  or  author- 
ity of  the  court  or  person  before  whom  the  perjury  was  com- 
mitted, or  was  agreed  or  promised  to  be  committed."  (Fed. 
Stats.  Ann.,  2d  ed.,  "Perjury";  3  U.  S.  Comp.  Stats.  1916, 
§1668.) 


491  INDICTMENTS.  Ch.  61,  §§  1242-121,") 

§  1242.    Form  of  Indictment  Before  a  Navy  Court-martial. 

§  1023,  Rev.  Stats.  "In  prosecutions  for  perjury  committed 
on  examination  before  a  naval  general  court-martial,  or  for 
the  subornation  thereof,  it  shall  be  sufficient  to  set  forth  the 
offense  charged  on  the  defendant,  without  setting  forth  the 
authority  by  which  the  court  was  held,  or  the  particular  mat- 
ters brought  before,  or  intended  to  be  brought  before,  said 
court."  (Fed.  Stats.  Ann.,  2d  ed.,  "Perjury";  3  U.  S.  Comp. 
Stats.  1916,  §  1689.) 

§  1243.    Joining   Charges   Against  a   Person  in   One  Indict- 
ment— Consolidation  of  Indictments. 

§  1024,  Rev.  Stats.  "When  there  are  several  charges  against 
any  person  for  the  same  act  or  transaction,  or  for  two  or  more 
acts  or  transactions  connected  together,  or  for  two  or  more 
acts  or  transactions  of  the  same  class  of  crimes  or  offenses, 
which  may  be.  properly  joined,  instead  of  having  several  in- 
dictments the  whole  may  be  joined  in  one  indictment  in  separate 
counts ;  and  if  two  or  more  indictments  are  found  in  such  cases, 
the  court  may  order  them  to  be  consolidated."  (2  Fed.  Stats. 
Ann.,  2d  ed.,  p.  676;  3  U.  S.  Comp.  Stats.  1916,  §  1690.) 

§  1244.    Defects  of  Form  in  Indictment — Immaterial  Unless 
Prejudicial. 

§  1025,  Rev.  Stats.  "No  indictment  found  and  presented 
by  a  grand  jury  in  any  district  or  circuit  or  other  court  of 
the  United  States  shall  be  deemed  insufficient,  nor  shall  the 
trial,  judgment,  or  other  proceeding  thereon  be  affected  by 
reason  of  any  defect  or  imperfection  in  matter  of  form  only, 
which  shall  not  tend  to  the  prejudice  of  the  defendant."  (2 
Fed.  Stats.  Ann.,  2d  ed.,  p.  681;  3  U.  S.  Comp.  Stats.  1916, 
§  1691.) 

§  1245.    Judgment  Respondeat  Ouster  on  Demurrer  to  an  In- 
dictment. 

§  1026,  Rev.  Stats.  "In  every  case  in  any  court  of  the 
United  States,  where  a  demurrer  is  interposed  to  an  indict- 
ment, or  to  any  count  or  counts  thereof,  or  to  any  informa- 
tion, and  the  demurrer  is  overruled,  the  judgment  shall  be 
respondeat  ouster;  and  thereupon  a  trial  may  be  ordered  at 
the  same  term,  or  a  continuance  may  be  ordered,  as  justice 
may  require."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  687;  3  U.  S. 
Comp.  Stats.  1916,  §  1692.) 


§  1260,  Ch.  62      MANUAL  OP  FEDERAL  PROCEDURE.  492 


CHAPTER  62.  . 

ARREST  AND  BAIL— CIVIL  AND  CRIMINAL. 

SEC. 

1260.  Arrest — Imprisonment  —  Bail  —  Removal  for  Trial — Offenders  Against 

the  United  States. 

1261.  Marshal   Making   Arrest   to  Take   Prisoner  to   Nearest  Judicial  Officer 

and  Return  Before  Such  Officer  the  Warrant  With  Certified  Copy  of 
Complaint  Attached. 

1262.  Officers  Authorized  to  Hold  to  Security  of  the  Peace  and  for  Good  Be- 

havior. 

1263.  Bail  Admitted  in  Cases  not  Capital. 

1264.  Bail  Admitted  in  Capital  Cases  Only  by  Court  or  Judge. 

1265.  Bail  in  Criminal  Cases  Removed  by  Writ  of  Error  from  State  Court. 

1266.  Bail— Surrender  of. 

1267.  New  Bail  as  Better  Security. 

1268.  Recognizance — Remittance  of — Forfeiture  of. 

1269.  Copy  of  Writ — Jailer's  Authority  and  Original  Returned  With  Of- 

ficer's Return. 

1270.  Writ  for  Removal  of  Prisoner  from  One  District  to  Another. 

1271.  One  Writ  Sufficient  Where  Several  Indictments  Against  Same  Person, 

1272.  No  Writ  Necessary  to  Bring  into  Court  Person  in  Custody. 

1273.  Special  Bail  in  Suits  for  Duties  or  Penalties  in  States  Where  Imprison- 

ment for  Debt  not  Abolished. 

1274.  Committing  Defendant  Who  has  Given  Bail  in  Another  District. 

1275.  Same — Holding  Defendant  Until  Final  Judgment  in  First  Suit. 

1276.  Calling  Bail  in  Kentucky. 

1277.  Bail  de  Bene  Esse  by  Clerks  in  Absence  of  Judges. 

§  1260.    Arrest  —  Imprisonment  —  Bail  —  Removal    for    Trial 
— Offenders  Against  the  United  States. 

§  1014,  Rev.  Starts.  "For  any  crime  or  offense  against  the 
United  States,  the  offender  may,  by  any  justice  or  judge  of 
the  United  States,  or  by  any  commissioner  of  a  circuit  court 
to  take  bail,  or  by  any  chancellor,  judge  of  a  supreme  or 
superior  court,  chief  or  first  judge  of  common  pleas,  mayor 
of  a  city,  justice  of  the  peace,  or  other  magistrate,  of  any 
state  where  he  may  be  found,  and  agreeably  to  the  usual  mode 
of  process  against  offenders  in  such  state,  and  at  the  expense 
of  the  United  States,  be  arrested  and  imprisoned,  or  bailed, 
as  the  case  may  be,  for  trial  before  such  court  of  the  United 


493        ARREST  AND  BAIL — CIVIL  AND  CRIMINAL.       Ch.  62,  §§  1261-1262 

States  as  by  law  has  cognizance  of  the  offense.  Copies  of  the 
process  shall  be  returned  as  speedily  as  may  be  into  the  clerk's 
office  of  such  court,  together  with  the  recognizances  of  the  wit- 
nesses for  their  appearance  to  testify  in  the  case.  And  where 
any  offender  or  witness  is  committed  in  any  district  other  than 
that  where  the  offense  is  to  be  tried,  it  shall  be  the  duty  of 
the  judge  of  the  district  where  such  offender  or  witness  is  im- 
prisoned, seasonably  to  issue,  and  of  the  marshal  to  execute, 
a  warrant  for  his  removal  to  the  district  where  the  trial  is  to 
be  had."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  654;  3  U.  S.  Comp. 
Stats.  1916,  §1674.) 

§  1261.  Marshal  Making1  Arrest  to  Take  Prisoner  to  Nearest 
Judicial  Officer  and  Return  Before  Such  Officer  the  Warrant  with 
Certified  Copy  of  Complaint  Attached. 

Act  Aug.  18,  1894,  c.  301.  "Provided,  That  it  shall  be  the 
duty  of  the  marshal,  his  deputy,  or  other  officer,  who  may 
arrest  a  person  charged  with  any  crime  or  offense,  to  take  the 
defendant  before  the  nearest  circuit  court  commissioner  or  the 
nearest  judicial  officer  having  jurisdiction  under  existing 
laws  for  a  hearing,  commitment,  or  taking  bail  for  trial,  and 
the  officer  or  magistrate  issuing  the  warrant  shall  attach  thereto 
a  certified  copy  of  the  complaint,  and  upon  the  arrest  of  the 
accused,  the  return  of  the  warrant,  with  a  copy  of  the  com- 
plaint attached,  shall  confer  jurisdiction  upon  such  officer 
as  fully  as  if  the  complaint  had  originally  been  made  before 
him,  and  no  mileage  shall  be  allowed  any  officer  violating  the 
provisions  hereof."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  674;  3 
U.  S.  Comp.  Stats.  1916,  §  1678.) 

§  1262.  Officers  Authorized  to  Hold  to  Security  of  the  Peace 
and  for  Good  Behavior. 

§270,  Jud.  Code  (Drawn  from  §757,  Rev.  Stats.).  "The 
judges  of  the  Supreme  Court  and  of  the  circuit  court  of  ap- 
peals and  district  courts,  United  States  commissioners,  and  the 
judges  and  other  magistrates  of  the  several  states  who  are  or 
may  be  aiithorized  by  law  to  make  arrests  for  offenses  against 
the  United  States,  shall  have  the  like  authority  to  hold  to 
security  of  the  peace  and  for  good  behavior,  in  cases  arising 
under  the  Constitution  and  laws  of  the  United  States,  as  may 


§§  1263-1265,  Ch.  62     MANUAL  OP  FEDERAL  PROCEDURE.  494 

be  lawfully  exercised  by  any  judge  or  justice  of  the  peace  of 
the  respective  states,  in  cases  cognizable  before  them."  (36 
Stats.  1163 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1056 ;  2  U.  S.  Comp. 
Stats.  1916,  §  1247.) 

Bail  and  affidavits  in  civil  cases  may  be  taken  by  a  court  commis- 
sioner under  §  945,  Rev.  Stats. ;  4  Fed.  Stats.  Ann.,  p.  772 ;  3  U.  S. 
Comp.  Stats.  1916,  §  1571. 

§  1263.    Bail  Admitted  in  Cases  not  Capital. 

§  1015,  Rev.  Stats.  "Bail  shall  be  admitted  upon  all  arrests 
in  criminal  cases  where  the  offense  is  not  punishable  by  death ; ' 
and  in  such  cases  it  may  be  taken  by  any  of  the  persons  au- 
thorized by  the  preceding  section  [§1260,  supra],  to  arrest 
and  imprison  offenders."  (1  Fed.  Stats.  Ann.,  2d  ed.,  p.  490; 
3  U.  S.  Comp.  Stats.  1916,  §  1679.) 

§  1264.    Bail  Admitted  in  Capital  Cases  Only  by  Court  or  Judge. 

§  1016,  Rev.  Stats.  "Bail  may  be  admitted  upon  all  arrests 
in  criminal  cases  where  the  punishment  may  be  death;  but 
in  such  cases  it  shall  be  taken  only  by  the  Supreme  Court  or 
a  circuit  court,  or  by  a  justice  of  the  Supreme  Court,  a  cir- 
cuit judge,  or  a  judge  of  a  district  court,  who  shall  exercise 
their  discretion  therein,  having  regard  to  the  nature  and 
circumstance  of  the  offense,  and  of  the  evidence,  and  to  the 
usages  of  law."  (1  Fed.  Stats.  Ann.,  2d  ed.,  pp.  490,  491; 
3  U.  S.  Comp.  Stats.  1916,  §  1680.) 

§  1265.  Bail  in  Criminal  Cases  Removed  by  Writ  of  Error  from 
State  Court. 

§  1017,  Rev.  Stats.  "When  a  writ  of  error  is  issued  for  the 
revision  of  the  judgment  of  a  state  court,  in  any  criminal  pro- 
ceeding where  is  drawn  in  question  the  validity  of  a  statute  of, 
or  an  authority  exercised  under,  the  United  States,  or  where 
any  title,  right,  privilege,  or  immunity  is  claimed  under  the 
Constitution,  or  any  statute  of,  or  commission  held  or  authority 
exercised  under,  the  United  States,  the  defendant,  if  charged 
with  an  offense  that  is  bailable  by  the  laws  of  such  state,  shall 
not  be  released  from  custody  until  a  final  judgment  upon  such 


495        ARREST  AND  BAIL CIVIL  AND  CRIMINAL.       Oh.  62,  §§ 

writ,  or  until  a  bond,  with  sufficient  sureties,  in  a  reasonable 
sum,  as  ordered  and  approved  by  the  state  court,  is  given ;  and 
if  the  offense  is  not  so  bailable,  until  a  final  judgment  upon 
the  writ  of  error. "  (1  Fed.  Stats.  Ann.,  2d  ed.,  p.  491 ;  3  U.  S. 
Comp.  Stats.  1916,  §  1681.) 

§  1266.     Bail — Surrender  of. 

§1018,  Rev.  Stats.  "Any  party  charged  with  a  criminal 
offense  and  admitted  to  bail  may,  in  vacation,  be  arrested  by 
his  bail,  and  delivered  to  the  marshal  or  his  deputy,  before  any 
judge  or  other  officer  having  power  to  commit  for  such  offense ; 
and  at  the  request  of  such  bail,  the  judge  or  other  officer  shall 
recommit  the  party  so  arrested  to  the  custody  of  the  marshal, 
and  indorse  on  the  recognizance,  or  certified  copy  thereof,  the 
discharge  and  exoneretur  of  such  bail ;  and  the  party  so  com- 
mitted shall  therefrom  be  held  in  custody  until  discharged  by 
due  course  of  law."  (1  Fed.  Stats.  Ann.,  2d  ed.,  p.  491;  3 
U.  S.  Comp.  Stats.  1916,  §  1682.) 

§  1267.    New  Bail  as  Better  Security. 

§1019,  Rev.  Stats.  "When  proof  is  made  to  any  judge  of 
the  United  States,  or  other  magistrate  having  authority  to  com- 
mit on  criminal  charges  as  aforesaid,  that  a  person  previously 
admitted  to  bail  on  any  such  charge  is  about  to  abscond,  and 
that  his  bail  is  insufficient,  the  judge  or  magistrate  shall  require 
such  person  to  give  better  security;  or,  for  default  thereof, 
cause  him  to  be  committed  to  prison ;  and  an  order  for  his  arrest 
may  be  indorsed  on  the  former  commitment,  or  a  new  warrant 
therefor  may  be  issued  by  such  judge  or  magistrate,  setting 
forth  the  cause  thereof."  (1  Fed.  Stats.  Ann.,  2d  ed.,  p.  492; 
3  U.  S.  Comp.  Stats.  1916,  §  1683.) 

§  1268.    Recognizance — Remittance  of — Forfeiture  of. 

§  1020,  Rev.  Stats.  ' '  When  any  recognizance  in  a  criminal 
cause,  taken  for,  or  in,  or  returnable  to,  any  court  of  the  United 
States,  is  forfeited  by  a  breach  of  the  condition  thereof,  such 
court  may,  in  its  discretion,  remit  the  whole  or  a  part  of  the 
penalty,  whenever  it  appears  to  the  court  that  there  has  been 
no  wilful  default  of  the  party,  and  that  a  trial  can,  notwith- 


§§  1269-1272,  Ch.  62     MANUAL  OF  FEDERAL  PROCEDURE.  496 

standing,  be  had  in  the  cause,  and  that  public  justice  does  not 
otherwise  require  the  same  penalty  to  be  enforced."  (1  Fed. 
Stats.  Ann.,  2d  ed.,  p.  492;  3  U.  S.  Comp.  Stats.  1916,  §  1684.) 

§1269.     Copy  of  Writ  —  Jailer 's  Authority  and  Original  Re- 
turned With  Officer's  Return. 

§  1028,  Rev.  Stats.  "Whenever  a  prisoner  is  committed  to 
a  sheriff  or  jailer  by  virtue  of  a  writ,  warrant,  or  mittimus,  a 
copy  thereof  shall  be  delivered  to  such  sheriff  or  jailer,  as  his 
authority  to  hold  the  prisoner,  and  the  original  writ,  warrant, 
or  mittimus  shall  be  returned  to  the  proper  court  or  officer, 
with  the  officer's  return  thereon."  (2  Fed.  Stats.  Ann.,  2d  ed., 
p.  672;  3  U.  S.  Comp.  Stats.  1916,  §  1694.) 

§  1270.    Writ  for  Removal  of  Prisoner  from  One  District  to 
Another. 

§  1029,  Rev.  Stats.  "Only  one  writ  or  warrant  is  necessary 
to  remove  a  prisoner  from  one  district  to  another.  One  copy 
thereof  may  be  delivered  to  the  sheriff  or  jailer  from  whose 
custody  the  prisoner  is  taken,  and  another  to  the  sheriff  or 
jailer  to  whose  custody  he  is  committed,  and  the  original  writ, 
with  the  marshal 's  return  thereon,  shall  be  returned  to  the  clerk 
of  the  district  to  which  he  is  removed."  (2  Fed.  Stats.  Ann., 
2d  ed.,  p.  673;  3  U.  S.  Comp.  Stats.  1916,  §  1695.) 

§  1271.     One  Writ  Sufficient  Where  Several  Indictments  Against 
Same  Person. 

§  1027,  Rev.  Stats.  "When  two  or  more  charges  are  made, 
or  two  or  more  indictments  are  found  against  any  person,  only 
one  writ  or  warrant  shall  be  necessary  to  commit  him  for  trial , 
and  it  shall  be  sufficient  to  state  in  the  writ  the  name  or  gen- 
eral character  of  the  offenses,  or  to  refer  to  them  only  in  very 
general  terms."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  672;  3  U.  S. 
Comp.  Stats.  1916,  §  1693.) 

§  1272.     No  Writ   Necessary  to  Bring  into   Court   Person  in 
Custody. 

§  1030,  Rev.  Stats.  "No  writ  is  necessary  to  bring  into 
court  any  prisoner  or  person  in  custody,  or  for  remanding 


497         ARREST  AND  BAIL — CIVIL  AND  CRIMINAL.       Ch.  62,  §§  1273-1274 

him  from  the  court  into  custody;  but  the  same  shall  he  done 
on  the  order  of  the  court  or  district  attorney,  for  which  no  fees 
shall  be  charged  by  the  clerk  or  marshal."  (2  Fed.  Stats. 
Ann.,  2d  ed.,  p.  673;  3  U.  S.  Comp.  Stats.  1916,  §  1696.) 

§  1273.    Special  Bail  in  Suits  for  Duties  or  Penalties  in  States 
Where  Imprisonment  for  Debt  not  Abolished. 

§  942 ,  Rev.  Stats.  "In  all  suits  or  prosecutions  for  the  re- 
covery of  duties  or  pecuniary  penalties  prescribed  by  the  laws 
of  the  United  States,  commenced  in  any  state  where,  by  the 
laws  thereof,  imprisonment  for  debt  shall  not  have  been  abol- 
ished, the  person  against  whom  process  is  issued  shall  be  held 
to  special  bail,  subject  to  the  rules  which  prevail  in  civil  suits 
in  which  special  bail  is  required."  (1  Fed.  Stats.  Ann.,  2d  ed., 
p.  488;  3  U.  S.  Comp.  Stats.  1916,  §  1568.) 

§  1274.    Committing  Defendant  Who  has  Given  Bail  in  Another 
District. 

§  943,  Rev.  Stats.  ' '  When  a  defendant  who  has  procured 
bail  to  respond  to  the  judgment  in  a  suit  in  any  court  of  the 
United  States  in  any  district  is  afterward  arrested  in  any 
other  district  and  is  committed  to  a  jail,  the  use  of  which  had 
been  ceded  to  the  United  States  for  the  custody  of  prisoners, 
the  judge  of  the  court  wherein  the  suit  in  which  the  defendant 
'  has  so  procured  bail  is  depending,  shall,  at  the  request  of  the 
bail,  order  that  such  defendant  be  held  in  said  jail,  in  the 
custody  of  the  marshal  of  the  district  in  which  it  is.  The  said 
marshal,  upon  the  delivery  of  such  order,  duly  authenticated, 
shall  receive  such  person  into  his  custody,  and  thereupon  be 
chargeable  for  an  escape,  and  shall  forthwith  make  a  certifi- 
cate, under  his  hand  and  seal  of  such  commitment,  and  trans- 
mit the  same  to  the  court  from  which  the  order  issued,  and, 
if  required,  shall  make  and  deliver  to  such  bail  or  to  his  attor- 
ney a  duplicate  thereof.  Upon  the  return  of  said  certificate, 
the  court  which  made  the  said  order,  or  any  judge  thereof, 
may  direct  that  an  exoneretur  be  entered  upon  the  bailpiece, 
where  special  bail  shall  have  been  found,  or  otherwise  discharge 
such  bail."  (1  Fed.  Stats.  Ann.,  2  ed.,  p.  489;  3  U.  S.  Comp. 
Stats.  1916,  §  1569.) 

Manual — 32 


§§  1275-1277,  Ch.  62    MANUAL  OP  FEDERAL  PROCEDURE.  498 

§  1275.     Same  —  Holding  Defendant  Until  Final  Judgment  in 
First  Suit. 

§  944,  Rev.  Stats.  "When  a  defendant  is  committed  by  vir- 
tue of  the  order  provided  in  the  preceding  section,  he  shall, 
unless  sooner  discharged  by  law,  be  holden  in  jail  until  final 
judgment  is  rendered  in  the  suit  in  which  he  procured  bail  as 
aforesaid,  and  sixty  days  thereafter,  if  such  judgment  is  ren- 
dered against  him,  in  order  that  he  may  be  charged  in  execu- 
tion, which  may,  in  such  cases,  be  directed  to  and  served  by 
the  marshal  in  whose  custody  he  is."  (1  Fed.  Stats.  Ann., 
2d  ed.,  p.  489;  3  U.  S.  Comp.  Stats.  1916,  §  1570.) 

§  1276.     Calling  Bail  in  Kentucky. 

§  946,  Rev.  Stats.  ' '  When  a  bail  bond  is  given  for  the  ap- 
pearance of  any  person  to  answer  in  the  district  or  circuit 
court  for  the  district  of  Kentucky,  the  clerk  of  such  court 
shall  call  the  party  at  the  time  he  is  bound  to  appear.  If  the 
party  fails,  the  clerk  shall  enter  such  failure  on  his  minutes, 
and  on  said  entry  judgment  may  afterward  be  made  of  record 
by  the  court;  but  if  the  party  appears,  the  clerk  shall  take 
another  bond,  with  sureties  similar  to  the  first,  for  further 
appearance  at  the  next  succeeding  term  of  the  court,  and  if 
the  party  fails  to  give  such  other  bond  and  surety,  he  shall 
stand  committed  by  order  of  the  clerk  until  he  complies."  (1 
Fed.  Stats.  Ann.,  2d  ed.,  p.  489 ;  3  U.  S.  Comp.  Stats.  1916, 
§  1572.) 

§  1277.    Bail  de  Bene  Esse  by  Clerks  in  Absence  of  Judges. 

§547,  Rev.  Stats.  "Recognizances  of  special  bail  may  be 
taken  de  bene  esse  by  the  clerks  of  the  circuit  and  district 
courts,  in  the  absence  or  in  case  of  the  disability  of  the  judges, 
in  any  action  depending  in  either  of  the  said  courts,  where 
special  bail  is  demandable."  (1  Fed.  Stats.  Ann.,  2d  ed., 
pp.  489,  490;  3  U.  S.  Comp.  Stats.  1916,  §  1573.) 


499  EXTRADITION.  Ch.  63,  §1300 


CHAPTER  63. 

EXTRADITION. 

SEC. 

1300.  When  and  by  Whom  Warrant  may  Issue  for  Arrest  of  Fugitive  from 

Justice   from  a  Foreign   Country. 

1301.  Person  Held  for  Extradition  Only  on  Evidence  Establishing  Probable 

Cause. 

1302.  No  Extradition  for  Political  Offense. 

1303.  Extradition  to  Foreign  Country  or  Territory  Occupied  or  Under  Control 

of  United  States  of  Persons  Committing  Certain  Offenses. 
J304.     Hearing  —  Certification  of  Testimony  to  Secretary  of  State  —  Warrant 
for  Commitment  Pending  Surrender. 

1305.  Hearing  to  be  Public  on  Land. 

1306.  Witnesses  for  Indigent  Prisoners. 

1307.  Evidence  on   the  Hearing. 

1308.  Surrender  of  Person  by  Secretary  of  State  for  a  Fair  and  Impartial 

Trial. 

1309.  Retaking  of  Escaped  Person  Held  for  Extradition. 

1310.  Time  Allowed  for  Extradition  Two  Months  After  Commitment. 

1311.  Extradition  Provisions  Continue  During  Existence  of  Treaty. 

1312.  Transportation  and   Protection   of   Person    Extradited  to   the   United 

States. 

1313.  Same — Powers  of  Agent  Receiving  Such  Persons  Extradited  from  For- 

eign Country. 

1314.  Same — Penalty  for  Opposing  Agent  or  Attempting  Rescue. 
1316.     Interstate  Extradition. 

1316.     Penalty  for  Resisting  Agent  or  Attempting  Rescue,  Interstate  Extra- 
dition. 

§  1300.    When  and  by  Whom  Warrant  may  Issue  for  Arrest  of 
Fugitive  from  Justice  from  a  Foreign  Country. 

First  Part,  §  5270.  "Whenever  there  is  a  treaty  or  conven- 
tion for  extradition  between  the  government  of  the  United 
States  and  any  foreign  government,  any  justice  of  the  Supreme 
Court,  circuit  judge,  district  judge,  commissioner,  authorized 
so  to  do  by  any  of  the  courts  of  the  United  States,  or  judge 
of  a  court  of  record  of  general  jurisdiction  of  any  state,  may, 
upon  complaint  made  under  oath,  charging  any  person  found 
within  the  limits  of  any  state,  district,  or  territory,  with  having 
committed  within  the  jurisdiction  of  any  such  foreign  govern- 


§§  1301-1303,  Ch.  63     MANUAL  OF  FEDERAL  PROCEDURE.  500 

ment  any  of  the  crimes  provided  for  by  such  treaty  or  con- 
vention, issue  his  warrant  for  the  apprehension  of  the  person 
so  charged,  that  he  may  be  brought  before  such  justice,  judge, 
or  commissioner,  to  the  end  that  the  evidence  of  criminality 
may  be  heard  and  considered.  .  .  .  '  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  265;  10  U.  S.  Comp.  Stats.  1916,  §  10,110,  p.  12,367.) 

§  1301.  Person  Held  for  Extradition  Only  on  Evidence  Estab- 
lishing Probable  Cause. 

Part  §  5270,  Rev.  Stats.  "...  Provided,  further,  That 
such  proceedings  shall  be  had  before  a  judge  of  the  courts  of 
the  United  States  only,  who  shall  hold  such  person  on  evidence 
establishing  probable  cause  that  he  is  guilty  of  the  offense 
charged:  .  .  ."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  265;  10  U.  S. 
Comp.  Stats.  1916,  §  10,110,  p.  12,368.) 

§  1302.    No  Extradition  for  Political  Offense. 

Part  §  5270,  Rev.  Stats.  "  .  .  .  And  provided  further,  That 
no  return  or  surrender  shall  be  made  of  any  person  charged 
with  the  commission  of  any  offense  of  a  political  nature.  ..." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  265 ;  10  U.  S.  Comp.  Stats.  1916, 
§  10,110,  p.  12,368.) 

§  1303.  Extradition  to  Foreign  Gauntry  or  Territory  Occupied 
or  Under  Control  of  United  States  of  Persons  Committing  Certain 
Offenses. 

Part  §  5270,  Rev.  Stats.  "...  Provided,  That  whenever 
any  foreign  country  or  territory,  or  any  part  thereof,  is  occu- 
pied by  or  under  the  control  of  the  United  States,  any  person 
who  shall  violate,  or  who  has  violated,  the  criminal  laws  in 
force  therein,  by  the  commission  of  any  of  the  following 
offenses,  namely:  Murder  and  assault  with  intent  to  commit 
murder;  counterfeiting  or  altering  money,  or  uttering  or 
bringing  into  circulation  counterfeit  or  altered  money;  coun- 
terfeiting certificates  or  coupons  of  public  indebtedness,  bank 
notes,  or  other  instruments  of  public  credit,  and  the  utterance 
or  circulation  of  the  same;  forgery  or  altering  and  uttering 
what  is  forged  or  altered;  embezzlement  or  criminal  malver- 
sation of  the  public  funds,  committed  by  public  officers,  em- 


501  EXTRADITION.  Ch.  63,  §1304 

ployees,  or  depositaries;  larceny  or  embezzlement  of  an  amount 
not  less  than  one  hundred  dollars  in  value ;  robbery ;  burglary, 
defined  to  be  the  breaking  and  entering  by  night  time  into 
the  house  of  another  person  with  intent  to  commit  a  felony 
therein ;  and  the  act  of  breaking  and  entering  the  house  or 
building  of  another,  whether  in  the  day  or  night  time,  with  the 
intent  to  commit  a  felony  therein ;  the  act  of  entering,  or  of 
breaking  and  entering,  the  offices  of  the  government  and  public 
authorities,  or  the  offices  of  banks,  banking  houses,  savings 
banks,  trust  companies,  insurance  or  other  companies,  with 
the  intent  to  commit  a  felony  therein;  perjury  or  the  sub- 
ornation of  perjury;  rape,  arson;  piracy  by  the  law  of  nations; 
murder,  assault  with  intent  to  kill,  and  manslaughter,  com- 
mitted on  the  high  seas,  on  board  a  ship  owned  by  or  in  con- 
trol of  citizens  or  residents  of  such  foreign  country  or  terri- 
tory, and  not  under  the  flag  of  the  United  States  or  of  some 
other  government;  malicious  destruction  of  or  attempt  to  de- 
stroy railways,  trams,  vessels,  bridges,  dwellings,  public  edifices, 
or  other  buildings,  when  the  act  endangers  human  life,  and* 
who  shall  depart  or  flee,  or  who  has  departed  or  fled,  from 
justice  therein  to  the  United  States,  any  territory  thereof  or 
to  the  District  of  Columbia, — shall,  when  found  therein,  be 
liable  to  arrest  and  detention  by  the  authorities  of  the  United 
States,  and  on  the  written  request  or  requisition  of  the  military 
governor  or  other  chief  executive  officer  in  control  of  such 
foreign  country  or  territory  shall  be  returned  and  surrendered, 
as  hereinafter  provided,  to  such  authorities  for  trial  under  the 
laws  in  force  in  the  place  where  such  offense  was  committed. 
All  the  provisions  of  sections  fifty-two  hundred  and  seventy 
to  fifty-two  hundred  and  seventy-seven  of  this  title,  so  far  as 
applicable,  shall  govern  proceedings  authorized  by  this  pro- 
viso: ..."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  266;  10  U.  S. 
Comp.  Stats.  1916,  §  10,110,  p.  12,367.) 

§  1304.    Hearing — Certification  of  Testimony  to  Secretary  of 
State — Warrant  for  Commitment  Pending  Surrender. 

Part  §  5270,  Rev.  Stats.  "  ...  If,  on  such  hearing,  he 
deems  the  evidence  sufficient  to  sustain  the  charge  under  the 
provisions  of  the  proper  treaty  or  convention,  he  shall  certify 
the  same,  together  with  a  c6py  of  all  the  testimony  taken  before 
him,  to  the  Secretary  of  State,  that  a  warrant  may  issue^upon 


§§  1305-1307,  Ch.  03     MANUAL  OF  FEDERAL  PROCEDURE.  502 

the  requisition  of  the  proper  authorities  of  such  foreign  gov- 
ernment, for  the  surrender  of  such  person,  according  to  the 
stipulations  of  the  treaty  or  convention ;  and  he  shall  issue  his 
warrant  for  the  commitment  of  the  person  so  charged  to  the 
proper  jail,  there  to  remain  until  such  surrender  shall  be 
made.  ..."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  265;  10  U.  S. 
Comp.  Stats.  1916,  §  10,110,  p.  12,367.) 

§  1305.    Heaiing  to  be  Public  on  Land. 

§1,  Act  Aug.  3,  1882,  c.  378.  "That  all  hearings  in  cases 
of  extradition  under  treaty  stipulation  or  convention  shall  be 
held  on  land,  publicly,  and  in  a  room  or  office  easily  accessible 
to  the  public."  (22  Stats.  215;  3  Fed.  Stats.  Ann.,  2d  ed., 
p.  312;  10  U.  S.  Comp.  Stats.  1916,  §  10,112,  p.  12,396.) 

§  1306.    Witnesses  for  Indigent  Prisoners. 

§  3,  Act  Aug.  3,  1882,  c.  378.  "That  on  the  hearing  of  any 
case  under  a  claim  of  extradition  by  any  foreign  government, 
upon  affidavit  being  filed  by  the  person  charged,  setting  forth 
that  there  are  witnesses  whose  evidence  is  material  to  his 
defense,  that  he  cannot  safely  go  to  trial  without  them,  what 
he  expects  to  prove  by  each  of  them,  and  that  he  is  not  pos- 
sessed of  sufficient  means,  and  is  actually  unable  to  pay  the 
fees  of  such  witnesses,  the  judge  or  commissioner  before  whom 
such  claim  for  extradition  is  heard  may  order  that  such  wit- 
nesses be  subpoenaed;  and  in  such  cases  the  costs  incurred 
by  the  process,  and  the  fees  of  witnesses,  shall  be  paid  in  the 
same  manner  that  similar  fees  are  paid  in  the  case  of  witnesses 
subpoenaed  in  behalf  of  the  United  States."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  312;  10  U.  S.  Comp.  Stats.  1916,  §  10,114; 
Charlton  v.  Kelly,  229  U.  S.  447,  37  L.  Ed.  1274,  46  L.  R.  A. 
(N.  S.)  397,  33  Sup.  Ct.  945.) 

§  1307.    Evidence  on  the  Hearing. 

§§  5  and  6,  Act  Aug.  3,  1882,  c.  378.  "Sec.  5  (Evidence  on 
hearing).  That  in  all  cases  where  any  depositions,  warrants, 
or  other  papers  or  copies  thereof  shall  be  offered  in  evidence 
upon  the  hearing  of  any  extradition  case  under  title  sixty-six 
of  the  Revised  Statutes  of  the  United  States,  such  depositions, 
warrants,  and  other  papers,  or  the  copies  thereof,  shall  be  re- 


503  EXTRADITION.  Ch.  63,  §1308 

ceived  and  admitted  as  evidence  on  such  hearing  for  all  the 
purposes  of  such  hearing  if  they  shall  be  properly  and  legally 
authenticated  so  as  to  entitle  them  to  be  received  for  similar 
purposes  by  the  tribunals  of  the  foreign  country  from  which 
the  accused  party  shall  have  escaped,  and  the  certificate  of  the 
principal  diplomatic  or  consular  officer  of  the  United  States 
resident  in  such  foreign  country  shall  be  proof  that  any  depo- 
sition, warrant,  or  other  paper  or  copies  thereof,  so  offered, 
are  authenticated  in  the  manner  required  by  this  act."  (3 
Fed.  Stats.  Ann.,  2d  ed.,  p.  313 ;  10  U.  S.  Comp.  Stats.  1916, 
§  10,116 ;  Ex  parte  Schorer,  197  Fed.  67 ;  Ex  parte  La  Mantia, 
206  Fed.  330.) 

"Sec.  6.  (Repeal.)  The  act  approved  June  nineteenth, 
eighteen  hundred  and  seventy -six,  entitled,  'An  Act  to  Amend 
Section  fifty-two  hundred  and  seventy-one  of  the  Revised  Stat- 
utes of  the  United  States,'  and  so  much  of  said  section  fifty- 
two  hundred  and  seventy-one  of  the  Revised  Statutes  of  the 
United  States  as  is  inconsistent  with  the  provisions  of  this 
act  are  hereby  repealed."  (22  Stats.  215;  3  Fed.  State.  Ann., 
2d  ed.,  p.  315.) 

§  5271,  Rev.  Stats.  "  (Evidence  on  the  hearing.)  In  every 
case  of  complaint,  and  of  a  hearing  upon  the  return  of  the 
warrant  of  arrest,  copies  of  the  depositions  upon  which  an 
original  warrant  in  any  foreign  country  may  have  been 
granted,  certified  under  the  hand  of  the  person  issuing  such 
warrant,  and  attested  upon  the  oath  of  the  party  producing 
them  to  be  true  copies  of  the  original  depositions,  may  be  re- 
ceived in  evidence  of  the  criminality  of  the  person  so  appre- 
hended, if  they  are  authenticated  in  such  manner  as  would 
entitle  them  to  be  received  for  similar  purposes  by  the  tribunals 
of  the  foreign  country  from  which  the  accused  party  escaped. 
The  certificate  of  the  principal  diplomatic  or  consular  officer 
of  the  United  States  resident  in  such  foreign  country  shall  be 
proof  that  any  paper  or  other  document  so  offered  is  authen- 
ticated in  the  manner  required  by  this  section. "  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  281;  10  U.  S.  Comp.  Stats.  1916,  §  10,111.) 

§  1308.    Surrender  of  Person  by  Secretary  of  State  for  a  Fair 
and  Impartial  Trial. 

Last  Part  §  5270,  Rev.  Stats.  "  ...  If  so  held  such  person 
shall  be  returned  and  surrendered  to  the  authorities  in  con- 


§§  1309-1310,  Ch.  63     MANUAL  OP  FEDERAL  PROCEDURE.  504 

trol  of  such  foreign  country  or  territory  on  the  order  of  the 
Secretary  of  State  of  the  United  States,  and  such  authorities 
shall  secure  to  such  a  person  a  fair  and  impartial  trial."  (3 
Fed.  Stats.  Ann.,  2d  ed.,  p.  265;  10  U.  S.  Comp.  Stats.  1916, 
§  10,110,  p.  12,368.) 

First  Part  §5 272,  Eev.  Stats.  "It  shall  be  lawful  for. the 
Secretary  of  State,  under  his  hand  and  seal  of  office,  to  order 
the  person  so  committed  to  he  delivered  to  such  person  as 
shall  be  authorized,  in  the  name  and  on  behalf  of  such  foreign 
government,  to  be  tried  for  the  crime  of  which  such  person 
shall  be  so  accused,  and  such  person  shall  be  delivered  up 
accordingly;  and  it  shall  be  lawful  for  the  person  so  author- 
ized to  hold  such  person  in  custody,  and  to  take  him  to  the 
territory  of  such  foreign  government,  pursuant  to  such 
treaty.  ..."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  282;  10  U.  S. 
Comp.  Stats.  1916,  §  10,118.) 

§  1309.     Retaking  of  Escaped  Person  Held  for  Extradition. 

Last  Part  §5272,  Rev.  Stats.  "  ...  If  the  person  so  ac- 
cused shall  escape  out  of  any  custody  to  which  he  shall  be 
committed,  or  to  which  he  shall  be  delivered,  it  shall  be  lawful 
to  retake  such  person  in  the  same  manner  as  any  person  accused 
of  any  crime  against  the  laws  in  force  in  that  part  of  the 
United  States  to  which  he  shall  so  escape,  may  be  retaken  on  an 
escape."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  282;  10  U.  S.  Comp. 
Stats.  1916,  §  10,118.) 

§  1310.    Time  Allowed  for  Extradition  Two  Months  After  Com- 
mitment. 

§  5273,  Rev.  Stats.  "Whenever  any  person  who  is  com- 
mitted under  this  title  or  any  treaty,  to  remain  until  delivered 
up  in  pursuance  of  a  requisition,  is  not  so  delivered  up  and 
conveyed  out  of  the  United  States  within  two  calendar  months 
after  such  commitment,  over  and  above  the  time  actually  re- 
quired to  convey  the  prisoner  from  the  jail  to  which  he  was 
committed,  by  the  readiest  way,  out  of  the  United  States,  it 
shall  be  lawful  for  any  judge  of  the  United  States,  or  of  any 
state,  upon  application  made  to  him  by  or  on  benalf  of  the 
person  so  committed,  and  upon  proof  made  to  him  that  reason- 
able notice  of  the  intention  to  make  such  application  has  been 


505  EXTRADITION.  Ch.  63,  §§1311-1313 

given  to  the  Secretary  of  State,  to  order  the  person  so  com- 
mitted to  be  discharged  out  of  custody,  unless  sufficient  cause 
is  shown  to  such  judge  why  such  discharge  ought  not  to  be 
ordered."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  283 ;  10  U.  S.  Comp. 
Stats.  1916,  §  10,119.) 

§  1311.    Extradition  Provisions  Continue  During  Existence  of 
Treaty. 

§  5374,  Rev.  Stats.  "The  provisions  of  this  title  relating  to 
the  surrender  of  persons  who  have  committed  crimes  in  foreign 
countries  shall  continue  in  force  during  the  existence  of  any 
treaty  of  extradition  with  any  foreign  government,  and  no 
longer."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  283;  10  U.  S.  Comp. 
Stats.  1916,  §  10,120.) 

§  1312.    Transportation  and  Protection  of  Person  Extradited  to 
the  United  States. 

§5575,  Rev.  Stats.  "Whenever  any  person  is  delivered  by 
any  foreign  government  to  an  agent  of  the  United  States,  for 
the  purpose  of  being  brought  within  the  United  States  and 
tried  for  any  crime  of  which  he  is  duly  accused,  the  President 
shall  have  power  to  take  all  necessary  measures  for  the  trans- 
portation and  safe-keeping  of  such  accused  person,  and  for 
his  security  against  lawless  violence,  until  the  final  conclusion 
of  his  trial  for  the  crimes  or  offenses  specified  in  the  warrant 
of  extradition,  and  until  his  final  discharge  from  custody  or 
imprisonment  fbr  or  on  account  of  such  crimes  or  offenses, 
and  for  a  reasonable  time  thereafter,  and  may  employ  such 
portion  of  the  land  or  naval  forces  of  the  United  States,  or  of 
the  militia  thereof,  as  may  be  necessary  for  the  safe-keeping 
and  protection  of  the  accused."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  283;  10  U.  S.  Comp.  Stats.  1916,  §  10,121.) 

§  1313.     Same — Powers  of  Agent  Receiving  Such  Persons  Ex- 
tradited from  Foreign  Country. 

§5575,  Rev.  Stats.  "Any  person  duly  appointed  as  agent 
to  receive,  in  behalf  of  the  United  States,  the  delivery,  by  a 
foreign  government,  of  any  person  accused  of  crime  committed 
within  the  jurisdiction  of  the  United  States,  and  to  convey  him 


§§  1314-1315,  Ch.  63    MANUAL  OP  FEDERAL  PROCEDURE.  506 

to  the  place  of  his  trial,  shall  have  all  the  powers  of  a  marshal 
of  the  United  States,  in  the  several  districts  through  which  it 
may  be  necessary  for  him  to  pass  with  such  prisoner,  so  far 
as  such  power  is  requisite  for  the  prisoner's  safe-keeping." 
(3  Fed.  Stats.  Ann.,  2d  ed.,  p.  284;  10  U.  S.  Comp.  Stats.  1916, 
§  10,122.) 

§  1314.    Same — Penalty  for    Opposing   Agent  or  Attempting 
Rescue. 

§  5577,  Rev.  Stats.  ' '  Every  person  who  knowingly  and  will- 
fully obstructs,  resists,  or  opposes  such  agent  in  the  execution 
of  his  duties,  or  who  rescues  or  attempts  to  rescue  such  pris- 
oner, whether  in  the  custody  of  the  agent  or  of  any  officer  or 
person  to  whom  his  custody  has  lawfully  been  committed,  shall 
be  punishable  by  a  fine  of  not  more  than  one  thousand  dollars, 
and  by  imprisonment  for  not  more  than  one  year."  (3  Fed. 
Stats.  Ann.,  2d  ed.,  p.  284;  10  U.  S.  Comp.  Stats.  1916, 
§  10,123.) 

§  1315.    Interstate  Extradition. 

§5578,  Rev.  Stats.  "Whenever  the  executive  authority  of 
any  state  or  territory  demands  any  person  as  a  fugitive  from 
justice,  of  the  executive  authority  of  any  state  or  territory  to 
which  such  person  has  fled,  and  produces  a  copy  of  an  indict- 
ment found  or  an  affidavit  made  before  a  magistrate  of  any 
state  or  territory,  charging  the  person  demanded  with  having 
committed  treason,  felony,  or  other  crime, 'certified  as  authentic 
by  the  governor  or  chief  magistrate  of  the  state  or  territory 
from  whence  the  person  so  charged  has  fled,  it  shall  be  the 
duty  of  the  executive  authority  of  the  state  or  territory  to 
which  such  person  has  fled  to  cause  him  to  be  arrested  and 
secured,  and  to  cause  notice  of  the  arrest  to  be  given  to  the 
executive  authority  making  such  demand,  or  to  the  agent  of 
such  authority  appointed  to  receive  the  fugitive,  and  to  cause 
the  fugitive  to  be  delivered  to  such  agent  when  he  shall  appear. 
If  no  such  agent  appears  within  six  months  from  the  time  of 
the  arrest,  the  prisoner  may  be  discharged.  All  costs  or  ex- 
penses incurred  in  the  apprehending,  securing,  and  trans- 
mitting such  fugitive  to  the  state  or  territory  making  such 


EXTRADITION.  Ch.  63,  §1316 

demand  shall  be  paid  by  such  state  or  territory."  (3  Fed. 
Stats.  Ann.,  2d  ed.,  p.  285;  10  U.  S.  Comp.  Stats.  1916, 
§  10,126.) 

§1316.    Penalty  for  Resisting  Agent  or  Attempting   Rescue, 
Interstate  Extradition. 

§5575,  Rev.  Stats.  "Any  agent  so  appointed  who  receives 
the  fugitive  into  his  custody  shall  be  empowered  to  transport 
him  to  the  state  or  territory  from  which  he  has  fled.  And 
every  person  who,  by  force,  sets  at  liberty  or  rescues  the  fugi- 
tive from  such  agent  while  so  transporting  him,  shall  be  fined 
not  more  than  five  hundred  dollars  or  imprisoned  not  more 
than  one  year."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  311;  10  U.  S. 
Comp.  Stats.  1916,  §  10,127.) 


§  1330-1331,  Ch.  64    MANUAL  OP  FEDERAL  PROCEDURE.  508 


CHAPTER  64. 

HABEAS  CORPUS. 

SEC. 

1330.  Constitutional  Provision. 

1331.  Courts  Authorized  to  Issue  Writ  of  Habeas  Corpus. 

1332.  Power  of  Judges  to  Grant  Writs  of  Habeas  Corpus. 

1333.  Cases  Where  Federal  Writ  of  Habeas  Corpus  will  Issue. 

1334.  Application  for  Writ  of  Habeas  Corpus — How  Ma<Je. 

1335.  Allowance  and  Direction  of  Writ  of  Habeas  Corpus. 

1336.  Time  of  Return  of  Writ  of  Habeas  Corpus. 

1337.  Form  of  Return  of  Writ  of  Habeas  Corpus. 

1338.  Producing   the  Person. 

1339.  The  Day  for  Hearing. 

1340.  Denial  of  Return — Counter  Allegations — Amendments. 

1341.  Summary  Hearing — Disposition  of  Party. 

1342.  In  Cases  Involving  the  Law  of  Nations — Notice  to  be  Served  on  State- 

Attorney  General. 

§  1330.    Constitutional  Provision. 

Clause  2,  §9,  Art.  1,  U.  S.  Const.  "The  Privilege  of  the 
Writ  of  Habeas  Corpus  shall  not  be  suspended,  unless  when  in 
Cases  of  Rebellion  or  Invasion  the  public  Safety  may  require 
it."  (10  U.  S.  Comp.  Stats.  1916,  p.  13,531.) 

§  1331.     Courts  Authorized  to  Issue  Writ  of  Habeas  Corpus. 

§55.2,  Jud.  Code  (Superseding  §751,  Rev.  Stats.}.  "  .' ;  '. 
•  The  Supreme  Court,  the  circuit  courts  of  appeals,  and  the  dis- 
trict courts  shall  have  power  to  issue  all  writs  not  specifically 
provided  for  by  statute,  which  may  be  necessary  for  the  exer- 
cise of  their  respective  jurisdictions,  and  agreeable  to  the 
usages  and  principles  of  law."  (36  Stats.  1162;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  928;  2  U.  S.  Comp.  Stats.  1916,  §  1239;  Fos- 
ter's Federal  Practice,  5th  ed.,  pp.  8,  1469,  1527,  2413;  Sim- 
kins'  Federal  Equity  Suit,  3d  ed.,  p.  41.) 

The  character  of  the  restraint  or  imprisonment  suffered  by  a 
party  applying  for  the  writ  of  habeas  corpus  must  be  actual  con- 


f)09  HABEAS   CORPUS.  Ch.  64,  §1331 

fiiK'incnt  or  the  present  means  of  enforcing  it.  Something  more 
than  moral  restraint  is  necessary  to  make  a  case.1  Jurisdiction  of 
a  writ  of  habeas  corpus  does  not  depend  upon  the  question  whether 
there  has  been  a  formal  commitment  or  not.2  Arrest  under  a  civil 
process  is  not  a  case  for  remedy  by  habeas  corpus?  In  order  to 
obtain  the  benefit  of  this  writ  and  to  procure  its  being  issued  by 
the  court  or  justice  or  judge  who  has  a  right  to  order  its  issue, 
it  should  be  made  to  appear,  upon  the  application  for  the  writ, 
that  it  is  founded  upon  some  matter  which  justifies  the  exercise 
of  federal  authority,  and  which  is  necessary  to  the  enforcement 
of  rights  under  the  Constitution,  laws,  or  treaties  of  the  United 
States.4  The  supreme  court  has  authority  to  issue  the  writ  of 
habeas  corpus,  but  except  in  cases  affecting  ambassadors,  other 
public  ministers,  or  consuls,  and  those  in  which  a  state  is  a  party, 
it  can  only  be  done  for  a  review  of  the  judicial  decision  of  some 
inferior  officer  or  court,5  The  courts  of  the  United  States  will 
not  discharge  the  prisoner  by  habeas  corpus  in  advance  of  a  final 
determination  of  his  case  in  the  courts  of  the  state ;  and  even  after 
such  final  determination  in  those  courts  will  generally  leave  the 
petitioner  to  the  usual  and  orderly  course  of  proceeding  by  writ  of 
error  from  the  supreme  court.6  When  a  person  has  been  dis- 
charged upon  habeas  corpus  the  issues  of  law  and  fact  involved  are 
res  judicata,  and  the  person  so  discharged  cannot,  for  the  same 
cause,  be  again  lawfully  arrested.7 

1  Wales  v.  Whitney,  114  U.  S.  564,  29  L.  Ed.  277,  5  Sup.  Ct.  1050. 

2  Matter  of  McDonald,  9  Am.  Law  Reg.  661,  16  Fed.  Cas.  No.  8751. 

3  Ex  parte  Wilson,  6  Cranch,  52,  3  L.  Ed.  149.     See  also  In  re  Mineau,  45 
Fed.  188. 

•*  In  re  Burrus,  136  U.  S.  586,  34  L.  Ed.  1500,  10  Sup.  Ct.  850. 

5  Ex  parte  Hung  Hang,  108  U.  S.  552,  27  L.  Ed.  811,  2  Sup.  Ct.  863;  In  re 
Laiie,  135  U.  S.  443,  34  L.  Ed.  219,  10  Sup.  Ct.  760;  Ex  parte  Terry,  128  U.  S. 
289,  32  L.  Ed.  405,  9  Sup.  Ct.  77;  Kx  parte  Parks,  93  U.  S.  18,  23  L.  Ed.  787; 
Ex  parte  Siebold,  100  U.  S.  375,  25  L.  Ed.  718. 

«  Whittcn  v.  Tomlinsori,  160  U.  S.  231,  40  L.  Ed.  406,  16  Sup.  Ct.  297; 
Baker  v.  Grice,  169  U.  S.  284.  42  L.  Ed.  748,  18  Sup.  Ct.  323;  Kohl  v.  Lehl- 
back,  160  U.  S.  293,  40  L.  Ed.  432,  16  Sup.  Ct.  304;  In  re  Frederich,  149 
U.  S.  70,  37  L.  Ed.  653,  13  Sup.  Ct.  793. 

7  United  States  v.  Chung  Shee,  71  Fed.  277.  But  see  In  re  White,  45  Fed. 
237;  Ex  parte  Kaine,  3  Blatchf.  1,  Fed.  CM.  No.  7597. 


§§  1332-1333,  Ch.  64    MANUAL  OF  FEDERAL  PROCEDURE.  510 

§  1332.    Power  of  Judges  to  Grant  Writs  of  Habeas  Corpus. 

§755,  Rev.  Stats.  "The  several  justices  and  judges  of  the 
said  courts,  within  their  respective  jurisdictions,  shall  have 
power  to  grant  writs  of  habeas  corpus  for  the  purpose  of  an 
inquiry  into  the  cause  of  restraint  of  liberty."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  448;  2  U.  S.  Comp.  Stats.  1916,  §  1280.) 

The  clause,  "cause  of  restraint  of  liberty,"  will  allow  writs  of 
habeas  corpus  to  stand,  and  at  common  law  they  do  stand,  for  all 
unlawful  restraints,  whether  under  color  of  process,  or  through 
the  illegal  acts  of  individuals,  or  under  a  commitment  to  an  insane 
asylum.8 

§  1333.    Cases  Where  Federal  Writ  of  Habeas  Corpus  will  Issue. 

§  753,  Rev.  Stats.  ' '  The  writ  of  habeas  corpus  shall  in  no 
case  extend  to  a  prisoner  in  jail,  unless  where  he  is  in  custody 
under  or  by  color  of  the  authority  of  the  United  States,  or  is 
committed  for  trial  before  some  court  thereof;  or  is  in  cus- 
tody for  an  act  done  or  omitted  in  pursuance  of  a  law  of 
the  United  States,  or  of  an  order,  process,  or  decree  of  a  court 
or  judge  thereof;  or  is  in  custody  in  violation  of  the  Constitu- 
tion or  of  a  law  or  treaty  of  the  United  States;  or,  being  a 
subject  or  citizen  of  a  foreign  state,  and  domiciled  therein,  is 
in  custody  for  an  act  done  or  omitted  under  any  alleged  right, 
title,  authority,  privilege,  protection,  or  exemption  claimed 
under  the  commission,  or  order,  or  sanction  of  any  foreign 
state,  or  under  color  thereof,  the  validity  and  effect  whereof 
depend  upon  the  law  of  nations;  or  unless  it  is  necessary  to 
bring  the  prisoner  into  court  to  testify."  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  449;  2  U.  S.  Comp.  Stats.  1916,  §  1281.) 

In  all  cases  where  federal  officers,  civil  or  military,  have  the 
custody  and  control  of  a  person  claimed  to  be  unlawfully  restrained 
of  liberty,  such  person  is  restrained  of  liberty  under  color  of 
authority  of  the  United  States,  and  the  federal  courts  can  proceed 
to  determine  the  question  of 'unlawful  restraint,  because  no  other 
court  can  properly  do  so.9 

8  King  v.  McLean  Asylum,  64  Fed.  331,  26  L.  E.  A.  784,  12  C.  C.  A.  145. 

9  United  States  v.  Crook,   5  Dill.  453,  Fed.   Cas.    No.   14.891;   Matter   of 
McDonald,  9  Am.  Law.  Reg.  661,  16  Fed.  Cas.  No.  8751;  Matter  of  Keeler, 
Hempst.  306,  Fed.  Cas.  No.  7637. 


511  HABEAS  CORPUS.          Ch.  64,  §§  1334-1335 

§  1334.    Application  for  Writ  of  Habeas  Corpus — How  Made. 

§754,  Rev.  Stats.  "Application  for  writ  of  habeas  corpus 
shall  be  made  to  the  court,  or  justice,  or  judge  authorized  to 
issue  the  same,  by  complaint  in  writing  signed  by  the  person 
for  whose  relief  it  is  intended,  setting  forth  the  facts  concern- 
ing the  detention  of  the  party  restrained,  in  whose  custody  he 
is  detained,  and  by  virtue  of  what  claim  or  authority,  if  known. 
The  facts  set  forth  in  the  complaint  shall  be  verified  by  the 
oath  of  the  person  making  the  application."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  462;  2  U.  S.  Comp.  Stats.  1916,  §  1282.) 

It  is  not  enough,  in  order  to  require  the  court  to  issue  a  writ 
of  habeas  corpus,  that  the  petition  alleges  that  the  prisoner  is  held 
in  violation  of  the  Constitution  of  the  United  States,  or  of  a  treaty 
with  a  foreign  nation.  That  is  a  mere  formal  allegation,  covering 
conclusions  of  law  as  well  as  of  fact,  and  the  petition  must  present 
specific  allegations  raising  an  issue.10 

Facts  duly  alleged  may  be  taken  to  be  true,  unless  denied  by  the 
return  or  controlled  by  other  evidence.  But  no  allegation  of  fact 
in  the  petition  can  be  assumed  to  be  admitted  unless  distinct  and 
unambiguous.11 


§  1335.    Allowance  and  Direction  of  Writ  of  Habeas  Corpus. 

§  755,  Rev.  Stats.  "The  court,  or  justice,  or  judge  to  whom 
such  application  is  made  shall  forthwith  award  a  writ  of  habeas 
corpus,  unless  it  appears  from  the  petition  itself  that  the  party 
is  not  entitled  thereto.  The  writ  shall  be  directed  to  the  per- 
son in  whose  custody  the  party  is  detained."  (3  Fed.  Stats. 
Ann.,  2d  ed.,  p.  464;  2  U.  S.  Comp.  Stats.  1916,  §  1283.) 

It  is  not  a  question,  at  the  time  of  the  application  for  the  writ, 
whether  or  not  the  facts  alleged  in  the  petition  are  true  or  false. 
They  are  to  be  verified  by  the  oath  of  the  petitioner,  and  if  he  sets 
out  in  his  petition  what  is  necessary  to  give  a  federal  court  juris- 

10  In  re  Storti,  109  Fed.  807;  King  v.  McLean  Asylum.  64  Fed.  325.  12 
C.  C.  A.  139. 

11  Whitten  v.  Tomlinson,  160  U.  S.  231,  40  L.  Ed.  406,  16  Sup.  Ct.  2&7: 
Kohl  v.  Lehlback,  160  U.  S.  293,  40  L.  Ed.  432,  16  Sup.  Ct.  304. 


§§  1336-1339,  Ch.  64    MANUAL  OF  FEDERAL  PROCEDURE.          .      512 

diction,  the  writ  must  issue,  and  the  truth  or  falsity  of  the  facts 
alleged  must  be  determined  at  the  hearing.12 

§  1336.    Time  of  Return  of  Writ  of  Habeas  Corpus. 

§  756,  Rev.  Stats.  "Any  person  to  whom  such  writ  is 
directed  shall  make  due  return  thereof  within  three  days  there- 
after unless  the  party  be  detained  beyond  the  distance  of 
twenty  miles;  and  if  beyond  that  distance  and  not  beyond  a 
distance  of  a  hundred  miles,  within  ten  days;  and  if  beyond 
the  distance  of  a  hundred  miles,  within  twenty  days."  (3 
Fed.  Stats.  Ann.,  2d  ed.,  p.  467;  2  U.  S.  Comp.  Stats.  1916, 
§  1284.) 

A  reasonable  time  has  always  been  allowed  for  making  the  return, 
and  it  is  not  to  be  presumed  that  one  will  not  be  made.13 

§  1337.    Form  of  Return  of  Writ  of  Habeas  Corpus. 

§  757,  Rev.  Stats.  "The  person  to  whom  the  writ  is  directed 
shall  certify  to  the  court,  or  justice,  or  judge  before  whom  it 
is  returnable  the  true  cause  of  the  detention  of  such  party." 
(14  Stats.  385 ;  3  Fed.  Stats.  Ann.,  2d  ed.,  p.  468;  2  U.  S.  Comp. 
Stats.  1916,  §  1285.) 

A  return  should  be  signed  by  the  person  to  whom  the  writ  is 
directed  or  should  be  accompanied  by  an  explanation  why  that 
is  not  done.14 

§  1338.    Producing  the  Person. 

§755,  Rev.  Stats.  "The  person  making  the  return  shall 
at  the  same  time  bring  the  body  of  the  party  before  the  judge 
who  granted  the  writ."  (3  Fed.  Sta'te.  Ann.,  2d  ed.,  p.  468; 
2  U.  S.  Comp.  Stats.  1916,  §  1286.) 

§  1339.    The  Day  for  Hearing. 

§  759,  Rev.  Stats.  "When  the  writ  is  returned,  a  day  shall 
be  set  for  the  hearing  of  the  cause,  not  exceeding  five  days 

12  Electoral  College's  Case,  1  Hughes,  571,  Fed.  Cas.  No.  4336;  In  re  Green- 
wald,  77  Fed.  590. 

13  Ex  parte  Baez,  177  U.  S.  378,  44  L.  Ed.  813,  20  Sup.  Ct.  673. 
l*  Seavey  v.  Seymour,  3  Cliff.  439,  Fed.  Cas.  No.  12,596. 


513  HABEAS  CORPUS.          Ch.  64,  §§  1340-1341 

thereafter,  unless  the  party  petitioning  requests  a  longer 
time."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  469;  2  U.  S.  Comp. 
Stats.  1916,  §  1287.) 

§  1340.    Denial  of  Return— Counter  Allegations — Amendments. 

§  760,  Rev.  Stats.  ' '  The  petitioner  or  the  party  imprisoned 
or  restrained  may  deny  any  of  the  facts  set  forth  in  the  return, 
or  may  allege  any  other  facts  that  may  be  material  in  the  case. 
Said  denials  or  allegations  shall  be  under  oath.  The  return 
and  all  suggestions  made  against  it  may  be  amended,  by  leave 
of  the  court,  or  justice,  or  judge,  before  or  after  the  same  are 
filed,  so  that  thereby  the  material  facts  may  be  ascertained." 
(14  Stats.  835;  3  Fed.  Stats.  Ann.,  2d  ed.,  p.  469;  2  U.  S. 
Comp.  Stats.  1916,  §  1288.) 

The  averments  of  the  answer  to  the  return  will  be  taken  as 
denied  by  the  respondent,  as  no  further  pleading  is  required  by 
the  statute.15 

§1341.    Summary  Hearing — Disposition  of  Party. 

§  761,  Rev.  Stats.  "The  court  or  justice  or  judge  shall  pro- 
ceed in  a  summary  way  to  determine  the  facts  of  the  case,  by 
hearing  the  testimony  and  arguments,  and  thereupon  to  dis- 
pose of  the  party  as  law  and  justice  require."  (14  Stats. 
385 ;  3  Fed.  Stats.  Ann.,  2d  ed.,  p.  469 ;  2  U.  S.  Comp.  Stats. 
1916,  §  1289.) 

This  section  means  that  if  he  is  held  in  custody  in  violation  of 
the  Constitution  or  a  law  of  the  United  States,  or  for  an  act  done 
or  omitted  in  pursuance  of  a  law  of  the  United  States,  he  must  be 
discharged.16  Where  a  person  is  held  on  process  on  a  final  judg- 
ment, after  conviction  on  a  trial  on  an  indictment,  and  a  lidbeas 
corpus  is  issued,  and  the  return  to  the  writ  states  the  process  as 
the  cause  of  detention,  the  "facts"  the  court  is  required  to  deter- 
mine, either  on  such  return  alone  or  by  the  aid  of  a  certiorari,  are 
the  final  judgment,  the  conviction,  the  fact  of  trial,  and  the  in- 
dictment. The  particulars  of  the  evidence  which  led  to  the  con- 
ic Matter  of  Leary,  10  Ben.  197,  Fed.  Cas.  No.  8162. 

16  In  re  Neagle,  135  U.  S.  1,  34  L.  Ed.  55,  10  Sup.  Ct.  658;  In  re  Ander- 
son, 94  Fed.  487. 

Manual — 38 


§  1342,  Ch.  64      MANUAL  OP  FEDERAL  PROCEDURE.  514 

viction  are  no  part  of  such  "facts." 1T  In  proceedings  upon  habeas 
corpus  the  authority  of  the  courts  is  not  so  restricted  as  to  compel, 
them  in  every  instance  either  to  discharge  the  prisoner  absolutely 
or  to  remand  him  to  the  custody  of  the  person  producing  him,  but 
the  provision  empowering  and  requiring  the  court  to  "dispose  of 
the  party  as  law  and  justice  require,"  authorizes  the  court  to 
commit  the  custody  of  the  party  to  anyone  showing  a  right  thereto.18 
The  injunction  to  hear  the  case  summarily,  and  thereupon  dispose 
of  the  party  as  law  and  justice  may  require,  does  not  deprive  the 
court  of  discretion  as  to  the  time  and  mode  in  which  it  will  exert 
the  powers  conferred  upon  it.  That  discretion  should  be  exer- 
cised in  the  light  of  the  relations  existing,  under  our  system  of 
government,  between  the  judicial  tribunals  of  the  Union  and  of 
the  states,  and  in  recognition  of  the  fact  that  the  public  good  re- 
quires that  those  relations  be  not  disturbed  by  unnecessary  conflict 
between  courts  equally  bound  to  guard  and  protect  rights  secured 
by  the  Constitution.19 

§  1342.    In  Cases  Involving  the  Law  of  Nations — Notice  to  be 
Served  on  State  Attorney  General. 

§  762,  Rev.  Stats.  "When  a  writ  of  habeas  corpus  is  issued 
in  the  case  of  any  prisoner  who,  being  a  subject  or  citizen  of  a 
foreign  state  and  domiciled  therein,  is  committed  or  confined 
or  in  custody  by  or  under  the  authority  or  law  of  any  one  of 
the  United  States,  or  process  founded  thereon,  on  account  of 
any  act  done  or  omitted  under  an  alleged  right,  title;  author- 
ity, privilege,  protection,  or  exemption,  claimed  under  the 
commission  or  order  or  sanction  of  any  foreign  state  or  under 
color  thereof,  the  validity  and  effect  whereof  depend  upon  the 
law  of  nations,  notice  of  the  said  proceeding,  to  be  prescribed 
by  the  court  or  justice  or  judge  at  the  time  of  granting  said 
writ,  shall  be  served  on  the  attorney  general  or  other  officer 
prosecuting  the  pleas  of  said  state  and  due  proof  of  such  ser- 
vice shall  be  made  to  the  court,  or  justice,  or  judge  before  the 
hearing."  (5  Stats.  539;  3  Fed.  Stats.  Ann.,  2d  ed.,  p.  474; 
2  U.  S.  Comp.  Stats.  1916,'  §  1290.) 

17  In  re  Stupp,  12  Blatehf.  501,  Fed.  Gas.  No.  13,563. 

18  Mother-well  v.  United  States,  107  Fed.  437,  48  C.  C.  A.  97;  Medley,  Peti- 
tioner, 134  U.  8.  160,  33  L.  Ed.  835,  10  Sup.  Ct.  384. 

19  Ex  parte  Royall,  117  U.  S.  254,  29  L.  Ed.  872,  6  Sup.  Ct.  742;  State  of 
Minnesota  v.  Brundage,  180  U.  S.  499,  43  L.  Ed.  639,  21  Sup.  Ct.  455. 


515  ARRAIGNMENT  AND  TRIAL.  Ch.  65,  §  1360 


CHAPTER  65. 

ARRAIGNMENT  AND  TRIAL. 

SEC. 

1360.  How  Offenses  are  Prosecuted. 

1361.  Duty  of  District  Attorney  to  Prosecute. 

1362.  Standing  Mute— Plea  not  Guilty. 

1363.  Persons  Indicted  of  Treason  or  Capital  Offense  Entitled  to  Copy  of 

Indictment  and  Last  of  Jurors  and  Witnesses. 

1364.  Persons  Indicted  for  Capital  Crimes  Entitled  to  Counsel  and  to  Com- 

pel Witnesses. 

1365.  Accused  has  Right  to  Trial  by  Jury. 

1366.  Peremptory  Challenges — Criminal  Cases. 

1367.  Excessive  Peremptory  Challenges  in  Capital  Cases  Disregarded, 

1368.  Challenges  in  Prosecutions  for  Bigamy  or  Polygamy. 

1369.  Trial  of  Criminal  Cases. 

§  1360.    How  Offenses  are  Prosecuted. 

Capital  Offenses  or  Otherwise  Infamous  Crimes. 

Part  5th  Amend.  U.  8.  Const.  "No  person  shall  be  held  to 
answer  for  capital,  or  otherwise  infamous  crime,  unless  on  a 
presentment  or  indictment  of  a  Grand  Jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  Militia,  when 
in  actual  service  in  time  of  War  or  public  danger.  ..."  (11 
U.  S.  Comp.  Stats.  1916,  p.  14,320.) 

Offenses  not  Infamous. 

§  1022,  Rev.  Stats.  "All  crimes  and  offenses  committed 
against  the  provisions  of  chapter  seven,  Title  'Crimes,'  which 
are  not  infamous,  may  be  prosecuted  either  by  indictment  or 
by  information  filed  by  a  district  attdrney."  (2  Fed.  Stats. 
Ann.,  2d  ed.,  p.  675;  3  U.  S.  Comp.  Stats.  1916,  §  1686.) 

Under §1021,  Rev.  Stats.  (§1224  above),  no  indictment  shall 
be  found,  nor  shall  any  presentment  be  made,  without  the  concur- 
rence of  at  least  twelve  grand  jurors. 


§§  1361-1363,  Ch.  65    MANUAL,  OP  FEDERAL  PROCEDURE.  516 

§  1361.    Duty  of  District  Attorney  to  Prosecute. 

Part  §  771,  Rev.  Stats.  "It  shall  be  the  duty  of  every  dis- 
trict attorney  to  prosecute,  in  his  district,  all  delinquents  for 
crimes  and  offenses  cognizable  under  the  authority  of  the 
United  States.  ..."  (4  Fed.  Stats.  Ann.,  2d  ed.,  p.  756; 
2  U.  S.  Comp.  Stats.  1916,  §  1296;  Foster's  Federal  Practice, 
5th  ed.,  p.  1615.) 

§  1362.    Standing  Mute— Plea  not  Guilty. 

§1032,  Rev.  Stats.  "When  any  person  indicted  for  any 
offense  against  the  United  States,  whether  capital  or  other- 
wise, upon  his  arraignment  stands  mute,  or  refuses  to  plead  or 
answer  thereto,  it  shall  be  the  duty  of  the  court  to  enter  the 
plea  of  not  guilty  on  his  behalf,  in  the  same  manner  as  if  he 
had  pleaded  not  guilty  thereto.  And  when  the  party  pleads 
not  guilty,  or  such  plea  is  entered  as  aforesaid,  the  cause  shall 
be  deemed  at  issue,  and  shall,  without  further  form  or  cere- 
mony, be  tried  by  a  jury."  (2  Fed.  Stats.  Ann.,  2d  ed., 
pp.  687,  688;  3  U.  S.  Comp.  Stats.  1916,  §  1698.) 

§  1363.  Persons  Indicted  of  Treason  or  Capital  Offense  En- 
titled to  Copy  of  Indictment  and  List  of  Jurors  and  Witnesses. 

§  1033,  Rev.  Stats.  "When  any  person  is  indicted  of  trea- 
son, a  copy  of  the  indictment  and  a  list  of  the  jury,  and  of  the 
witnesses  to  be  produced  on  the  trial  for  proving  the  indict- 
ment, stating  the  place  of  abode  of  each  juror  and  witness, 
shall  be  delivered  to  him  at  least  three  days  before  he  is  tried 
for  the  same.  When  any  person  is  indicted  of  any  other 
capital  offense,  such  copy  of  the  indictment  and  list  of  the 
jurors  and  witnesses  shall  be  delivered  to  him  at  least  two 
entire  days  before  the  trial."  (2  Fed.  Stats.  Ann.,  2d  ed., 
p.  688;  3  U.  S.  Comp.  Stats.  1916,  §  1699.) 

This  provision  is  not  directory  only,  but  mandatory  to  the  govern- 
ment; and  its  purpose  is  to  inform  the  defendant  of  the  testimony 
he  will  have  to  meet  and  enable  him  to  prepare  his  defense.  Being 
enacted  for  his  benefit,  he  may  doubtless  waive  it,  if  he  pleases; 
but  he  has  a  right  to  insist  upon  it,  and  if  he  seasonably  does  so, 
the  trial  cannot  lawfully  proceed  until  the  requirement  has  been 


517  ARRAIGNMENT  AND  TRIAL.  Ch.  65,  §  1364 

complied  with.1  There  would  appear  to  be  a  negative  pregnant 
here,  and  it  has  accordingly  been  held  that  in  cases  not  capital  the 
prisoner  is  not  entitled  to  a  copy  of  the  indictment  at  government 
expense.2  Nor  is  he  entitled  to  a  list  of  witnesses  and  jurors.3  Rut 
in  cases  not  capital,  where  there  has  been  no  preliminary  examina- 
tion, it  is  within  the  discretion  of  the  court  to  order  a  list  of  the 
witnesses  sworn  before  the  grand  jury  to  be  furnished  the  accused.4 
The  arraignment  is  to  be  regarded  as  the  commencement  of  the 
trial,  and  the  statutory  time  in  which  the  copy  of  the  indictment 
and  a  list  of  the  jury  are  to  be  delivered  to  him  must  be  exclusive 
of  the  day  of  delivery  and  the  day  of  arraignment.5 

§  1364.    Persons  Indicted  for  Capital  Crimes  Entitled  to  Coun- 
sel and  to  Compel  Witnesses. 

§  1034,  Rev.  Stats.  "Every  person  who  is  indicted  of 
treason  or  other  capital  crime,  shall  be  allowed  to  make  his  full 
defense  by  counsel  learned  in  the  law;  and  the  court  before 
which  he  is  tried,  or  some  judge  thereof,  shall  immediately, 
upon  his  request,  assign  to  him  such  counsel,  not  exceeding 
two  as  he  may  desire,  and  they  shall  have  free  access  to  him 
at  all  seasonable  hours.  He  shall  be  allowed,  in  his  defense, 
to  make  any  proof  that  he  can  produce  by  lawful  witnesses, 
and  shall  have  the  like  process  of  the  court  to  compel  his  wit- 
nesses to  appear  at  his  trial,  as  is  usually  granted  to  compel 
witnesses  to  appear  on  behalf  of  the  prosecution."  (1  Stats. 
118 ;  2  Fed.  Stats.  Ann.,  2d  ed.,  p.  690 ;  3  U.  S.  Comp.  Stats. 
1916,  §  1700.) 

Part  6th  Amend.  U.  8.  Const.  "In  all  criminal  prosecutions 
the  accused  shall  enjoy  the  right  ...  to  be  informed  of  the 
nature  and  cause  of  the  accusation ;  to  be  confronted  with  the 
witnesses  against  him ;  to  have  compulsory  process  for  obtain- 
ing Witnesses  in  his  favor,  and  to  have  the  Assistance  of 

1  Logan  v.  United  States,  144  U.  S.  263,  36  L.  Ed.  429,  12  Sup;  Ct.  617; 
Hickory  v.  United  States,   151  U.  S.  303,  38  L.  Ed.  170,  14  Sup.  Ct.   334; 
United  States  v.  Cornell,  2  Mason,  91,  Fed.  Cas.  No.  14,868. 

2  United  States  v.  Van  Duzco.  140  U.  S.  169,  35  L.  Ed.  399,  11  Sup.  Ct.  758; 
Shelp  v.  United  States,  81  Fed.  694,  26  C.  C.  A.  570. 

3  United  States  v.  Van  Duzce,  140  U.  S.  169,  35  L.  Ed.  399,  11  Sup.  Ct.  758. 
*  United  States  v.  Sotithmayd,  6  Bi?s.  321,  Fed.  Cas.  1(5,361. 

5  United  States  v.  Dow,  Taney;  34,  Fed.  Cas.  No.  14,990. 


§§  1365-1367,  Ch.  65    MANUAL  OP  FEDERAL  PROCEDURE.  518 

Counsel  for  his  defense."     (11  U.   S.   Comp.   Stats.   1916, 
p.  14,388.) 

§  1365.    Accused  has  Right  to  Trial  by  Jury. 

Part  6fh  Amend.  U.  S.  Const.  ' '  In  all  criminal  prosecutions, 
the  accused  shall  enjoy  the  right  to  a  speedy  and  public  trial, 
by  an  impartial  jury  of  the  state  and  district  wherein  the  crime 
shall  have  been  committed,  which  district  shall  have  been  pre- 
viously ascertained  by  law,  ..."  (11  U.  S.  Comp.  Stats. 
1916,  p.  14,388.) 

The  provisions  relating  to  qualifications  and  exemptions,  etc.. 
of  petit  jurors  are  about  the  same  as  for  grand  jurors  set  out  in 
chapter  60  above ;  but  in  prosecutions  for  bigamy  or  polygamy  there 
are  special  grounds  of  challenge  set  out  in  the  following  section. 
The  subject  of  petit  juries  is  treated  in  §§  583-593  inclusive, 
supra.  Special  provisions  as  to  challenges  in  criminal  cases  are  in 
the  following  sections. 

§  1366.    Peremptory  Challenges — Criminal  Cases. 

§  287,  Jud.  Code.  ' '  When  the  offense  charged  is  treason  or 
a  capital  offense,  the  defendant  shall  be  entitled  to  twenty 
and  the  United  States  to  six  peremptory  challenges.  On  the 
trial  of  any  other  felony,  the  defendant  shall  be  entitled  to 
ten  and  the  United  States  to  six  peremptory  challenges;  and 
in  all  other  cases,  civil  and  criminal,  each  party  shall  be  enti- 
tled to  three  peremptory  challenges;  and  in  all  cases  where 
there  are  several  defendants  or  several  plaintiffs,  the  parties 
on  each  side  shall  be  deemed  a  single  party  for  the  purposes 
of  all  challenges  under  this  section.  All  challenges,  whether 
to  the  array  or  panel,  or  to  individual  jurors  for  cause  or  favor, 
shall  be  tried  by  the  court  without  the  aid  of  triers."  (36 
Stats.  1166;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1078;  2  U.  S.  Comp. 
Stats.  1916,  §  1264.) 

§  1367.  Excessive  Peremptory  Challenges  in  Capital  Cases  Dis- 
regarded. 

§1031,  Rev.  Stats.  "If,  in  the  trial  of  a  capital  offense, 
the  party  indicted  peremptorily  challenges  jurors  above  the 


519  ARRAIGNMENT  AND  TRIAL.  Ch.  65,  §  1368 

number  allowed  him  by  law,  such  excess  of  challenges  shall 
be  disallowed  by  the  court,  and  the  cause  shall  proceed  for 
trial  in  the  same  manner  as  if  they  had  not  been  made."  (6 
Fed.  Stats.  Ann.,  2d  ed.,  p.  139 ;  3  U.  S.  Comp.  £tats.  1916, 
§  1697;  Foster's  Federal  Practice,  5th  ed.,  p.  1690.) 

§  1368.     Challenges  in  Prosecutions  for  Bigamy  or  Polygamy. 

§288,  Jud.  Code  (Re-enacting  §  5,  Act  March  22,  1882, 
c.  47).  "In  any  prosecution  for  bigamy,  polygamy,  or  un- 
lawful cohabitation,  under  any  statute  of  the  United  States, 
it  shall  be  sufficient  cause  of  challenge  to  any  person  drawn 
or  summoned  as  a  juryman  or  talesman — 

"First,  that  he  is  or  has  been  living  in  the  practice  of 
bigamy,  polygamy,  or  unlawful  cohabitation  with  more  than 
one  woman,  or  that  he  is  or  has  been  guilty  of  an  offense  pun- 
ishable either  by  sections  one  or  three  of  an  Act  entitled,  'An 
Act  to  Amend  Section  fifty-three  hundred  and  fifty-two  of 
the  Revised  Statutes  of  the  United  States,  in  Reference  to 
Bigamy,  and  for  Other  Purposes,'  approved  March  twenty- 
second,  eighteen  hundred  and  eighty-two,  or  by  section  fifty- 
three  hundred  and  fifty-two  of  the  Revised  Statutes  of  the 
United  States,  or  the  act  of  July  first,  eighteen  hundred  and 
sixty-two,  entitled,  'An  Act  to  Punish  and  Prevent  the  Prac- 
tice of  Polygamy  in  the  Territories  of  the  United  States  anc^ 
Other  Places,  and  Disapproving  and  Annulling  Certain  Acts 
of  the  Legislative  Assembly  of  the  Territory  of  Utah ' ;  or 

"Second,  that  he  believes  it  right  for  a  man  to  have  more 
than  one  living  and  undivorced  wife  at  the  same  time,  or  to 
live  in  the  practice  of  cohabiting  with  more  than  one  woman. 

"Any  person  appearing  or  offered  as  a  juror  or  talesman, 
and  challenged  on  either  of  the  foregoing  grounds,  may  be 
questioned  on  his  oath  as  to  the  existence  of  any  such  cause 
of  challenge;  and  other  evidence  may  be  introduced  bearing 
upon  the  question  raised  by  such  challenge;  and  this  question 
shall  be  tried  by  the  court. 

"But  as  to  the  first  ground  of  challenge  before  mentioned, 
the  person  challenged  shall  not  be  bound  to  answer  if  he  shall 
say  upon  his  oath  that  he  declines  on  the  ground  that  his 
answer  may  tend  to  criminate  himself;  and  if  he  shall  answer 
as  to  said  first  ground,  his  answer  shall  not  be  given  in  evi- 
dence in  any  criminal  prosecution  against  him  for  any  offense 


§  1369,  Ch.  65      MANUAL  OP  FEDERAL  PROCEDURE.  520 

above  named;  but  if  he  declines  to  answer  on  any  ground, 
he  shall  be  rejected  as  incompetent."  (36  Stats.  1166;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  1081;  2  U.  S.  Comp.  Stats.  1916,  §  1265.) 

§  1369.  Trial  of  Criminal  Cases.  Provisions  as  to  evidence 
are  in  chapter  11,  and  as  to  witnesses  in  chapter  12. 

The  federal  courts  follow  their  own  rules  and  decisions  respect- 
ing the  trial  of  criminal  cases  and  matters  incidental  thereto. 

The  rules  of  the  district  court  in  the  various  districts  should  be 
consulted. 


521  JUDGMENT  IN  CRIMINAL  CASES.      Ch.  66,  §§  1380-1381 


CHAPTER  66. 
'»':         VERDICT  AND  JUDGMENT  IN  CRIMINAL  CASES. 

SEO. 

1380.  Verdict  for  Less  Offense  Than  Charged. 

1381.  Verdict  Against  One  or  More  Several  Joint  Defendants. 

1382.  Qualified  Verdict  in  Cases  of  Murder  in  First  Degree  or  Rape. 

1383.  Execution  Postponed  in  Capital  Case  Carried  to  Appellate  Court. 

1384.  Judgments  for  Fines — How  Collected. 

1385.  Discharge  of  Indigent  Convicts  Imprisoned  for  Fines. 

1388.     Confinement  in  State  Jail  or  Penitentiary  When  Use  of  so  Allowed  by 
State  Law. 

1387.  Where  No  Penitentiary  or  Jail  Suitable  or  Available  Attorney  Gen- 

eral may  Designate  in  a  Convenient  State  or  Territory — Trans- 
portation of  Prisoners — Change  of  Place  to  Preserve  Health  or 
Custody  of  Prisoner  or  Because  of  His  Improper  or  Cruel  Treatment. 

1388.  Transportation  of  Criminals  to  Places  of  Imprisonment  by  Marshal. 

1389.  Confinement  of  Juvenile  Offenders  Under  Sixteen  in  House  of  Refuge. 

1390.  Confinement    of    Juvenile    Offenders   Under   Twenty    Separate    from 

Prisoners  Over  Twenty. 

§  1380.    Verdict  for  Less  Offense  Than  Charged. 

§1035,  Rev.  Stats.  "In  all  criminal  causes  the  defendant 
may  be  found  guilty  of  any  offense  the  commission  of  which 
is  necessarily  included  in  that  with  which  he  is  charged  in  the 
indictment,  or  may  be  found  guilty  of  an  attempt  to  commit 
the  offense  so  charged :  Provided,  That  such  attempt  be  itself 
a- separate  offense."  (7  Stats.  198;  2  Fed.  Stats.  Ann.,  2d  ed., 
p.  690;  3  U.  S.  Comp.  Stats.  1916,  §  1701.) 

This  section  does  not  authorize  a  jury  to  find  the  defendant 
guilty  of  a  less  offense  than  the  one  charged,  unless  the  evidence 
justified  them  in  so  doing.  Congress  did  not  intend  to  invest 
juries  in  criminal  cases  with  power  arbitrarily  to  disregard  the  evi- 
dence and  the  principles  of  law  applicable  to  the  case  on  trial.1 

§  1381.   Verdict  Against  One  or  More  Several  Joint  Defendants. 

§  1036,  Rev.  Stats.  "On  an  indictment  against  several,  if 
the  jury  cannot  agree  upon  a  verdict  as  to  all,  they  may  render 

1  Sparf  v.  United  States,  156  U.  S.  51,  715,  39  L.  Ed.  343,  15  Sup.  Ct.  273. 


§§  1382-1383,  Ch.  66     MANUAL  OP  FEDERAL  PROCEDURE.  522 

a  verdict  as  to  those  in  regard  to  whom  they  do  agree,  on  which 
a  judgment  shall  be  entered  accordingly;  and  the  cause  as 
to  the  other  defendants  may  be  tried  by  another  jury."  (2 
Fed.  Stats.  Ann.,  2d  ed.,  p.  692;  3  U.  S.  Comp.  Stats.  1916, 
§  1702.) 

§  1382.    Qualified  Verdict  in  Cases  of  Murder  in  First  Degree 
or  Rape. 

§330,  Cr.  Code.  "In  all  cases  where  the  accused  is  found 
guilty  of  the  crime  of  murder  in  the  first  degree,  or  rape,  the 
jury  may  qualify  their  verdict  by  adding  thereto  'without 
capital  punishment';  and  whenever  the  jury  shall  return  a 
verdict  qualified  as  aforesaid  the  person  convicted  shall  be 
sentenced  to  imprisonment  at  hard  labor  for  life."  (Fed. 
Stats.  Ann.,  2d  ed.,  "Penal  Laws";  10  U.  S.  Comp.  Stats.  1916, 
§  10,504.) 

§1383.    Execution    Postponed  in    Capital    Case    Carried   to 
Appellate  Court. 

§  6,  Act  Feb.  6,  1889,  c.  113.  [Writs  of  error  on  conviction 
of  crimes  punishable  by  death.]  "That  hereafter  in  all  cases 
of  conviction  of  crime  the  punishment  of  which  provided  by  law 
is  death,  tried  before  any  court  of  the  United  States,  the  final 
judgment  of  such  court  against  the  respondent  shall,  upon  the 
application  of  the  respondent,  be  re-examined,  reversed,  or 
affirmed  by  the  Supreme  Court  of  the  United  States  upon  a 
writ  of  error,  under  such  rules  and  regulations  as  said -court 
may  prescribe,  Every  such  writ  of  error  shall  be  allowed  as 
of  right  and  without  the  requirement  of  any  security  for  the 
prosecution  of  the  same  or  for  costs.  Upon  the  allowance  of 
every  such  writ  of  error,  it  shall  be  the  duty  of  the  clerk  of 
the  court  to  which  the  writ  of  error  shall  be  directed  to  forth- 
with transmit  to  the  Clerk  of  the  Supreme  Court  of  the  United 
States  a  certified  transcript  of  the  record  in  such  case,  and 
it  shall  be  the  duty  of  the  Clerk  of  the  Supreme  Court  of  the 
United  States  to  receive,  file,  and  docket  the  same.  Every 
such  writ  of  error  shall  during  its  pendency  operate  as  a  stay 
of  proceedings  upon  the  judgment  in  respect  of  which  it  is 
sued  out.  Any  such  writ  of  error  may  be  filed  and  docketed 
in  said  Supreme  Court  at  any  time  in  a  term  held  prior  to 


523  JUDGMENT  IN  CRIMINAL  CASES.      Ch.  GG,  §§  1384-1385 

the  term  named  in  the  citation  as  well  as  at  the  term  so  named ; 
and  all  such  writs  of  error  shall  be  advanced  to  a  speedy  hear- 
ing on  motion  of  either  party.  "When  any  such  judgment 
shall  be  either  reversed  or  affirmed  the  cause  shall  be  remanded 
to  the  court  from  whence  it  came  for  further  proceedings  in 
accordance  with  the  decision  of  the  Supreme  Court,  and  the 
court  to  which  such  cause  is  so  remanded  shall  have  power 
to  cause  such  judgment  of  the  Supreme  Court  to  be  carried 
into  execution.  No  such  writ  of  error  shall  be  sued  out  or 
granted  unless  a  petition  therefor  shall  be  filed  with  the  clerk 
of  the  court  in  which  the  trial  shall  have  boon  had  during  the 
same  term  or  within  such  time,  not  exceeding  sixty  days  next 
after  the  expiration  of  the  term  of  the  court  at  which  the  trial 
shall  have  been  had,  as  the  court  may  for  cause  allow  by  order 
entered  of  record."  (25  Stats.  656;  6  Fed.  Stats.  Ann.,  2d 
ed.,  p.  146;  3  U.  S.  Comp.  Stats.  1916,  §  1703,  p.  3561.) 

Section  238,  Jud.  Code,  providing  for  appeals  and  writs  of  error 
from  the  district  courts  to  the  supreme  court,  does  not  contain 
the  clause,  contained  in  the  former  law,  giving  appellate  review  in 
criminal  cases.  Section  128,  Jud.  Code,  now  vests  such  criminal 
appellate  jurisdiction  in  the  circuit  court  of  appeals. 

§  1384.    Judgments  for  Fines — How  Collected. 

§  1041,  Rev.  Stats.  "In  all  criminal  or  penal  causes  in 
which  judgment  or  sentence  has  been  or  shall  be  rendered, 
imposing  the  payment  of  a  fine  or  penalty,  whether  alone  or 
with  any  other  kind  of  punishment,  the  said  judgment,  so  far 
as  the  fine  or  penalty  is  concerned,  may  be  enforced  by  execu- 
tion against  the  property  of  the  defendant  in  like  manner  as 
judgments  in  civil  cases  are  enforced:  Provided,  That  where 
the  judgment  directs  that  the  defendant  shall  be  imprisoned 
until  the  fine  or  penalty  imposed  is  paid,  the  issue  of  execu- 
tion on  the  judgment  shall  not  operate  to  discharge  the  de- 
fendant from  imprisonment  until  the  amount  of  the  judgment 
is  collected  or  otherwise  paid."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  327 ;  3  U.  S.  Comp.  Stats.  1916,  §  1705.) 

§  1385.    Discharge  of  Indigent  Convicts  Imprisoned  for  Fines. 

§  1042,  Rev.  Stats.  "When  a  poor  convict,  sentenced  by 
any  court  of  the  United  States  to  pay  a  fine,  or  fine  and  cost. 


§  1385,  Ch.  66      MANUAL  OP  FEDERAL  PROCEDURE.  524 

whether  with  or  without  imprisonment,  has  been  confined  in 
prison  thirty  days,  solely  for  the  nonpayment  of  such  fine, 
or  fine  and  cost,  he  may  make  application  in  writing  to  any 
commissioner  of  the  United  States  court  in  the  district  where 
he  is  imprisoned,  setting  forth  his  inability  to  pay  such  fine, 
or  fine  and  cost,  and  after  notice  to  the  district  attorney  of  the 
United  States,  who  may  appear,  offer  evidence,  and  be  heard, 
the  commissioner  shall  proceed  to  hear  and  determine  the 
matter ;  and  if  on  examination  it  shall  appear  to  him  that  such 
convict  is  unable  to  pay  such  fine,  or  fine  and  cost,  and  that 
he  has  not  any  property  exceeding  twenty  dollars  in  value, 
except  such  as  is  by  law  exempt  from  being  taken  on  execu- 
tion for  debt,  the  commissioner  shall  administer  to  him  the 
following  oath:  'I  do  solemnly  swear  that  I  have  not  any 
property,  real  or  personal,  to  the  amount  of  twenty  dollars, 
except  such  as  is  by  law  exempt  from  being  taken  on  civil  pre- 
cept for  debt  by  the  laws  of  [state  where  oath  is  adminis- 
tered] ;  and  that  I  have  no  property  in  any  way  conveyed 
or  concealed,  or,  in  any  way  disposed  of,  for  my  future  use 
or  benefit.  So  help  me  God.'  And  thereupon  such  convict 
shall  be  discharged,  the  commissioner  giving  to  the  jailer  or 
keeper  of  the  jail  a  certificate  setting  forth  the  facts."  (3 
Fed.  Stats.  Ann.,  2d  ed.,  p.  328 ;  3  U.  S.  Comp.  Stats.  1916, 
§  1706.) 

§  5296,  Rev.  Stats.  l '  When  a  poor  convict,  sentenced  by 
any  court  of  the  United  States  to  be  imprisoned  and  pay  a 
fine,  or  fine  and  cost,  or  to  pay  a  fine,  or  fine  and  costs,  has 
been  confined  in  prison  thirty  days,  solely  for  the  nonpay- 
ment of  such  fine,  or  fine  and  costs,  such  convict  may  make 
application  in  writing  to  any  commissioner  of  the  United 
States  court  in  the  district  where  he  is  imprisoned,  setting 
forth  his  inability  to  pay  such  fine,  or  fine  and  costs,  and 
after  notice  to  the  district  attorney  of  the  United  States,  who 
may  appear,  offer  evidence,  and  be  heard,  the  commissioner 
shall  proceed  to  hear  and  determine  the  matter.  If  on  exam- 
ination it  shall  appear  to  him  that  such  convict  is  unable  to 
pay  such  fine,  or  fine  and  costs,  and  that  he  has  not  any  prop- 
erty exceeding  twenty  dollars  in  value,  except  such  as  is  by 
law  exempt  from  .being  taken  on  execution  for  debt,  the  com- 
missioner shall  administer  to  him  the  following  oath:  'I  do 
solemnly  swear  that  I  have  not  any  property,  real  or  personal, 


525  JUDGMENT  IN  CRIMINAL  CASES.      Ch.  66,  §§  1386-1387 

to  the  amount  of  twenty  dollars,  except  such  as  is  by  law 
exempt  from  being  taken  on  civil  process  for  debt  by  the  laws 
of  [naming  the  state  where  oath  is  administered],  and  that  I 
have  no  property  in  any  way  conveyed  or  concealed,  or  in  any 
way  disposed  of,  for  my  future  use  or  benefit.  So  help  me 
God.  Upon  taking  such  oath,  such  convict  shall  be  discharged ; 
and  the  commissioner  shall  give  to  the  keeper  of  the  jail  a 
certificate  setting  forth  the  facts."  (3  Fed.  Stats.  Ann.,  2d 
ed.,  p.  338;  10  U.  S.  Comp.  Stats.  1916,  §  10,138.) 

§  1386.  Confinement  in  State  Jail  or  Penitentiary  When  Use 
of  so  Allowed  by  State  Law. 

§  5542,  Rev.  Stats.  ' '  In  every  case  where  any  criminal  con- 
victed of  any  offense  against  the  United  States  is  sentenced 
to  imprisonment  and  confinement  to  hard  labor,  it  shall  be 
lawful  for  the  court  by  which  the  sentence  is  passed  to  order 
the  same  to  be  executed  in  any  state  jail  or  penitentiary  within 
the  district  or  state  where  such  court  is  held,  the  use  of  which 
jail  or  penitentiary  is  allowed  by  the  legislature  of  the  state 
for  that  purpose."  (Fed.  Stats.  Ann.,  2d  ed.,  "Prisons  and 
Prisoners";  10  U.  S.  Comp.  Stats.  1916,  §  10,528.) 

§  1387.  Where  No  Penitentiary  or  Jail  Suitable  or  Available, 
Attorney  General  may  Designate  in  a  Convenient  State  or  Terri- 
tory— Transportation  of  Prisoners — Change  of  Place  to  Preserve 
Health  or  Custody  of  Prisoner  or  Because  of  His  Improper  or 
Cruel  Treatment. 

§  5546,  Rev.  Stats.  "All  persons  who  have  been,  or  who 
may  hereafter  be,  convicted  of  crime  by  any  court  of  the 
United  States,  including  consular  courts,  whose  punishment  is 
imprisonment  in  a  district  or  territory  or  country  where,  at 
the  time  of  conviction  or  at  any  time  during  the  term  of  im- 
prisonments, there  may  be  no  penitentiary  or  jail  suitable 
for  the  confinement  of  convicts,  or  available  therefor,  shall  be 
confined  during  the  term  for  which  they  have  been  or  may  be 
sentenced,  or  during  the  residue  of  said  term,  in  some  suitable 
jail  or  penitentiary  in  a  convenient  state  or  territory,  to  be 
designated  by  the  Attorney  General,  and  shall  be  transported 
and  delivered  to  the  warden  or  keeper  of  such  jail  or  peni- 


§  1388,  Ch.  66      MANUAL  OF  FEDERAL  PROCEDURE.  526 

tcntiary  by  the  marshal  of  the  district  or  territory  where  the 
conviction  has  occurred;  and  in  case  of  convictions  by  a  con- 
sular court  the  transportation  shall  be  by  some  properly  quali- 
fied agent  or  agents  designated  by  the  Department  of  State, 
the  reasonable  actual  expense  of  transportation,  necessary 
subsistence,  and  hire  and  transportation  of  guards  and  agent 
or  agents  to  be  defrayed  from  the  appropriation  for  bringing 
home  criminals;  and  if  the  conviction  be  had  in  the  District 
of  Columbia,  the  transportation  and  delivery  shall  be  by  the 
warden  of  the  jail  of  that  District,  the  reasonable  actual  ex- 
pense of  transportation,  necessary  subsistence,  and  hire  and 
transportation  of  guards  and  the  marshal,  or  the  warden  of 
the  jail  in  the  District  of  Columbia  only,  to  be  paid  by  the 
Attorney  General  out  of  the  judiciary  fund.  But  if,  in  the 
opinion  of  the  Attorney  General,  the  expense  of  transportation 
from  any  state,  territory,  or  the  District  of  Columbia  in  which 
there  is  no  penitentiary  will  exceed  the  cost  of  maintaining 
them  in  jail  in  the  state,  territory,  or  the  District  of  Columbia 
during  the  period  of  their  sentence,  then  it  shall  be  lawful 
so  to  confine  them  therein  for  the  period  designated  in  their 
respective  sentences.  And  the  place  of  imprisonment  may  be 
changed  in  any  case  when,  in  the  opinion  of  the  Attorney 
General,  it  is  necessary  for  the  preservation  of  the  health  of 
the  prisoner,  or  when,  in  his  opinion,  the  place  of  confinement 
is  not  sufficient  to  secure  the  custody  of  the  prisoner,  or  be- 
cause of  cruel  and  improper  treatment:  Provided,  hoivever, 
That  no  change  shall  be  made  in  the  case  of  any  prisoner  on 
the  ground  of  the  unhealthiness  of  the  prisoner  or  because  of 
his  treatment,  after  his  conviction  and  during  his  term  of 
imprisonment,  unless  such  change  shall  be  applied  for  by  such 
prisoner,  or  some  one  in  his  behalf."  (31  Stats.  1450;  Fed. 
Stats.  Ann.,  2d  ed.,  "Prisons  and  Prisoners";  10  U.  S.  Comp. 
Stats.  1916,  §  10,547.) 

§  1388.    Transportation  of  Criminals  to  Places  of  Imprisonment 
by  Marshal. 

§5,  Act  March  3,  1891,  c.  529.  "That  the  transportation 
of  all  United  States  prisoners  convicted  of  crimes  against  the 
laws  of  the  United  States  in  any  state,  district,  or  territory, 
and  sentenced  to  terms  of  imprisonment  in  a  penitentiary,  and 
their  delivery  to  the  superintendent,  warden,  or  keeper  of  such 


527  JUDGMENT  IN  CRIMINAL  CASES.  Ch.  66,  §  1389 

United  States  prisons,  shall  be  by  the  marshal  of  the  district 
or  territory  where  such  conviction  may  occur,  after  the  erection 
and  completion  of  said  prisons.  That  the  actual  expenses  of 
such  marshal,  including  transportation  and  subsistence,  hire, 
transportation,  and  subsistence  of  guards,  and  the  transporta- 
tion and  subsistence  of  the  convict  or  convicts,  be  paid,  on  the 
approval  of  the  Attorney  General,  out  of  the  judiciary  fund." 
(26  Stats.  839;  Fed.  Stats.  Ann.,  2d  ed.,  "Prisons  and  Pris- 
oners"; 10  U.  S.  Comp.  Stats.  1916,  §  10,556.) 

§  1389.    Confinement  of  Juvenile  Offenders  Under  Sixteen  in 
House  of  Refuge. 

§7,  Act  March  3,  1891,  c.  529.  "That  this  act  shall  not 
apply  to  minors  who,  in  the  judgment  of  the  judges  presiding 
over  United  States  courts,  should  be  committed  to  reformatory 
'institutions.  And  provided,  That  nothing  in  this  act  shall  be 
construed  as  prohibiting  the  courts  of  the  United  States  from 
sentencing  to  or  confining  prisoners,  either  civil  or  military, 
in  the  United  States  military  prison  at  Fort  Leavenworth, 
Kansas."  (26  Stats.  840;  Fed.  Stats.  Ann.,  2d  ed.,  "Prisons 
and  Prisoners";  10  U.  S.  Comp.  Stats.  1916,  §  10,558.) 

§  5549,  Rev.  Stats.  "Juvenile  offenders  against  the  laws  of 
the  United  States,  being  under  the  age  of  sixteen  years,  and 
who  may  hereafter  be  convicted  of  crime,  the  punishment 
whereof  is  imprisonment,  shall  be  confined  during  the  term  of 
sentence  in  some  house  of  refuge  to  be  designated  by  the 
Attorney  General,  and  shall  be  transported  and  delivered  to 
the  warden  or  keeper  of  such  house  of  refuge  by  the  marshal 
of  the  district  where  such  conviction  has  occurred ;  or  if  such 
conviction  be  had  in  the  District  of  Columbia,  then  the  trans- 
portation and  delivery  shall  be  by  the  warden  of  the  jail  of 
that  district,  and  the  reasonable  actual  expense  of  the  trans- 
portation, necessary  subsistence,  and  hire,  and  transportation 
of  assistants  and  the  marshal  or  warden,  only,  shall  be  paid 
by  the  Attorney  General,  out  of  the  judiciary  fund."  (17 
Stats.  35;  Fed.  Stats.  Ann.,  2d  ed.,  "Prisons  and  Prisoners"; 
10  U.  S.  Comp.  Stats.  1916,  §  10,550.) 


§  1390,  Ch.  66      MANUAL,  OP  FEDERAL  PROCEDURE.  528 

§  1390.    Confinement  of  Juvenile  Offenders  Under  Twenty  Sep- 
arate from  Prisoners  Over  Twenty. 

§£,  Act  March  3, 1891,c.529.  "That  the  Attorney  General 
shall  be  authorized  to  designate  to  which  of  said  prisons  per- 
sons convicted  in  such  states  or  territories  shall  be  carried  for 
confinement:  Provided,  That  in  the  construction  of  the  prison 
buildings  provided  for  in  this  act  there  shall  be  such  arrange- 
ment of  cells  and  yard  space  as  that  prisoners  under  twenty 
years  of  age  shall  not  be  in  any  way  associated  with  prisoners 
above  that  age,  and  the  management  of  the  class  under  twenty 
years  of  age  shall  be  as  far  as  possible  reformatory."  (26 
Stats.  840;  Fed.  Stats.  Ann.,  2d  ed.,  "Prisons  and  Prisoners"; 
10  U.  S.  Comp.  Stats.  1916,  §  10,560.) 


529  PARDON  AND  PAROLE.          Ch.  67,  §  1400 


CHAPTER  67. 

PARDON  AND  PAROLE. 

SEC. 

1400.  Mitigation  or  Remission  of  Pine,  etc.,  by  Secretary  of  Treasury  upon 

Summary  Investigation  by  District  Judge. 

1401.  Same — Rules  and  Mode  of  Proceeding  may  be  Prescribed  by  Secre- 

tary of  Treasury. 

1402.  Same — Penalty  of  Imprisonment  or  Removal  from  Office  Excepted — 

Preservation  of  Informer's  Right  to  Share  of  Fine,  etc. 

1403.  Execution  of  Death  Penalty. 

1404.  No  Corruption  of  Blood  or  Forfeiture  of  Estate. 

1405.  Whipping  and  Pillory  Abolished. 

1406.  Pardoning  Power  of  the  President. 

1407.  Parole  of  Prisoner*. 

§  1400.    Mitigation  or  Remission  of  Fine,  etc.,  by  Secretary  of 
Treasury  upon  Summary  Investigation  by  District  Judge. 

§  5292,  Rev.  Stats.  ' '  Whenever  any  person  who  shall  have 
incurred  any  fine,  penalty,  or  forfeiture,  or  disability,  or  may 
be  interested  in  any  vessel  or  merchandise  which  has  become 
subject  to  any  seizure,  forfeiture,  or  disability  by  authority 
of  any  provisions  of  law  for  imposing  or  collecting  any  duties 
or  taxes,  or  relating  to  registering,  recording,  enrolling,  or 
licensing  vessels,  and  for  regulating  the  same,  or  providing 
for  the  suppression  of  insurrections  or  unlawful  combinations 
against  the  United  States,  shall  prefer  his  petition  to  the  judge 
of  the  district  in  which  such  fine,  penalty,  or  forfeiture,  or 
disability  has  accrued,  truly  and  particularly  setting  forth  the 
circumstances  of  his  case,  and  shall  pray  that  the  same  may 
be  mitigated  or  remitted,  the  judge  shall  inquire,  in  a  sum- 
mary manner,  into  the  circumstances  of  the  case ;  first  causing 
reasonable  notice  to  be  given  to  the  person  claiming  such  fine, 
penalty,  or  forfeiture,  and  to  the  attorney  of  the  United 
States  for  such  district,  that  each  may  have  an  opportunity 
of  showing  cause  against  the  mitigation  or  remission  thereof; 
and  shall  cause  the  facts  appearing  upon  such  inquiry  to  be 
stated  and  annexed  to  the  petition,  and  direct  their  transmis- 
sion to  the  Secretary  of  the  Treasury.  The  Secretary  shall 

Manual — 34 


§  1401,  Ch.  67         MANUAL   OP   FEDERAL  PROCEDURE.  530 

thereupon  have  power  to  mitigate  or  remit  such  fine,  for- 
feiture, or  penalty,  or  remove  such  disability,  or  any  part 
thereof,  if,  in  his  opinion,  the  same  was  incurred  without 'wil- 
ful negligence,  or  any  intention  of  fraud  in  the  person  incur- 
ring the  same;  and  to  direct  the  prosecution,  if  any  has  been 
instituted  for  the  recovery  thereof,  to  cease  and  be  discon- 
tinued, upon  such  terms  or  conditions  as  he  may  deem  reason- 
able and  just."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  332;  10  U.  S. 
Comp.  Stats.  1916,  §  10,130.) 

§  1401.    Same — Rules  and  Mode  of  Proceeding  may  be  Pre- 
scribed by  Secretary  of  Treasury. 

§5293,  Rev.  Stats.  "The  Secretary  of  the  Treasury  is  au- 
thorized to  prescribe  such  rules  and  modes  of  proceeding  to 
ascertain  the  facts  upon  which  an  application  for  remission  of 
a  fine,  penalty,  or  forfeiture  is  founded,  as  he  deems  proper, 
and,  upon  ascertaining  them,  to  remit  the  fine,  penalty,  or  for- 
feiture, if  in  his  opinion  it  was  incurred  without  wilful  negli- 
gence or  fraud,  in  either  of  the  following  cases : 

"First.  If  the  fine,  penalty,  or  forfeiture  was  imposed  un- 
der authority  of  any  revenue  law,  and  the  amount  does  not 
exceed  one  thousand  dollars. 

"Second.  Where  the  case  occurred  within  either  of  the 
collection  districts  in  the  states  of  California  or  Oregon. 

' '  Third.  If  the  fine,  penalty,  or  forfeiture  was  imposed  un- 
der authority  of  any  provisions  of  law  relating  to  the  importa- 
tion of  merchandise  from  foreign  contiguous  territory,  or  re- 
lating to  manifests  for  vessels  enrolled  or  licensed  to  carry  on 
the  coasting  trade  on  the  northern,  northeastern,  and  north- 
western frontiers. 

"Fourth.  [By  amendment  transferred  to  'First,'  leaving 
this  blank.] 

"Fifth.  If  the  fine,  penalty,  or  forfeiture  was  imposed 
by  authority  of  any  provisions  of  law  for  levying  or  collecting 
any  duties  or  taxes,  or  relating  to  registering,  recording,  en- 
rolling, or  licensing  vessels,  and  the  case  arose  within  the 
collection  district  of  Alaska,  or  was  imposed  by  virtue  of  any 
provisions  of  law  relating  to  fur  seals  upon  the  islands  of  Saint 
Paul  and  Saint  George."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  335; 
10  U.  S.  Comp.  Stats.  1916,  §  10,131.) 


531  PARDON  AND  PAROLE.    Ch.  67,  §§  1402-1405 

§  1402.  Same — Penalty  of  Imprisonment  or  Removal  from 
Office  Excepted — Preservation  of  Informer's  Right  to  Share  of 
Fine,  etc. 

§5294,  Rev.  Stats.  "The  Secretary  of  the  Treasury  may, 
upon  application  therefor,  remit  or  mitigate  any  fine,  penalty, 
or  forfeiture  provided  for  in  laws  relating  to  vessels,  or  discon- 
tinue any  prosecution  to  recover  penalties  or  relating  to  for- 
feitures denounced  in  such  laws,  excepting  the  penalty  of  im- 
prisonment or  of  removal  from  office,  upon  such  terms  as  he, 
in  his  discretion,  shall  think  proper;  and  all  rights  granted  to 
informers  by  such  laws  shall  be  held  subject  to  the  Secretary's 
powers  of  remission,  except  in  cases  where  the  claims  of  any 
informer  to  the  share  of  any  penalty  shall  have  been  deter- 
mined by  a  court  of  competent  jurisdiction  prior  to  the  ap- 
plication for  the  remission  of  the  penalty  or  forfeiture ;  and 
the  Secretary  shall  have  authority  to  ascertain  the  facts  upon 
all  such  applications  in  such  manner  and  under  such  regula- 
tions as  he  may  deem  proper."  (3  Fed.  Stats.  Ann.,  2d  ed., 
p.  336 ;  10  U.  S.  Comp.  Stats.  1916,  §  10,135.) 

§  1403.    Execution  of  Death  Penalty. 

§  323,  Grim.  Code  (Superseding  without  change  §  5555,  Rev. 
Stats.).  ("The  manner  of  inflicting  the  punishment  by  death 
shall  be  by  hanging."  (Fed.  Stats.  Ann.,  2d  ed.,  "Penal 
Laws";  10  U.  S.  Comp.  Stats.  1916,  §  10,497.) 

§  1404.    No  Corruption  of  Blood  or  Forfeiture  of  Estate. 

§324,  Crim.  Code  (Superseding  §5326,  Rev.  Stats.).    "No 
.conviction  shall  work  corruption  of  blood  or  forfeiture  of 
estate."-    (Fed.  Stats.  Ann.,  2d  ed.,  "Penal  Laws";  10  U.  S. 
Comp.  Stats.  1916,  §  10,498.) 

§  1405.    Whipping  and  Pillory  Abolished. 

§  325,  Crim.  Code  (Old  §  5327,  Rev.  Stats.).  "The  punish- 
ment of  whipping  and  of  standing  in  the  pillory  shall  not  be  in- 
flicted." (Fed.  Stats.  Ann.,  2d  ed.,  "Penal  Laws";  10  U.  S. 
Stats.  1916,  §10,499.) 


§§  1406-1407,  Ch.  67     MANUAL  OF  FEDERAL  PROCEDURE.  532 

§  1406.    Pardoning  Power  of  the  President. 

§327,  Grim.  Code  (Old  §5330,  Rev.  Stats.").  "Whenever, 
by  the  judgment  of  any  court  or  judicial  officer  of  the  United 
States,  in  any  criminal  proceeding,  any  person  is  sentenced 
to  two  kinds  of  punishment,  the  one  pecuniary  and  the  other 
corporal,  the  president  shall  have  full  discretionary  power  to 
pardon  or  remit,  in  whole  or  in  part,  either  one  of  the  two 
kinds,  without  in  any  manner  impairing  the  legal  validity  of 
the  other  kind,  or  any  portion  of  either  kind,  not  pardoned 
or  remitted."  (Fed.  Stats.  Ann.,  2d  ed.,  "Penal  Laws";  10 
U.  S.  Comp.  Stats.  1916,  §  10,501.) 

§  1407.    Parole  of  Prisoners. 

Act  January  23,  1913,  c.  9.  "That  every  prisoner  who  has 
been  or  may  hereafter  be  convicted  of  any  offense  against  the 
United  States  and  is  confined  in  execution  of  the  judgment  of 
such  conviction  in  any  United  States  penitentiary  or  prison, 
for  a  definite  term  or  terms  of  over  one  year,  or  for  the  term 
of  his  natural  life,  whose  record  of  conduct  shows  that  he  has 
observed  the  rules  of  such  institution,  and  who,  if  sentenced 
for  a  definite  term,  has  served  one- third  of  the  total  of  such 
term  or  terms  for  which  he  was  sentenced,  or,  if  sentenced  for 
the  term  of  his  natural  life,  has  served  not  less  than  fifteen 
years,  may  be  released  on  parole  as  hereinafter  provided. "  (37 
Stats.  650;  Fed.  Stats.  Ann.,  2d  ed.,  "Prisons  and  Prisoners"; 
10  U.  S.  Comp.  Stats.  1916,  §  10,535.) 


533  COURT  OF  CLAIMS.        Ch.  68,  §§  1 130-1431 


CHAPTER  68. 
COUBT  OF  CLAIMS. 

SBO. 

1430.  Organization. 

1431.  Sessions. 

1432.  Jurisdiction. 

1433.  Statute  of  Limitations, 

1434.  Rules  of  Practice. 

1435.  Witnesses. 

1436.  New  Trials. 

1437.  Settling  of  Accounts — Interest. 

1438.  Costs. 

1439.  Judgment!  and  Their  Effects. 

1440.  Appeals. 

§  1430.  Organization.  The  Court  of  Claims  consists  of  a  chief 
justice  and  four  judges  appointed  by  the  President.  §  136,  Jud. 
Code  (Appendix,  post). 

A  seal  is  provided  under  §  137,  Jud.  Code  (Appendix,  post). 

§139,  Jud.  Code  (Appendix,  post),  provides  for  other  officers 
appointed  by  the  Court;  a  chief  clerk,  assistant  clerk,  bailiff  and 
chief  messenger. 

Their  salaries  are  provided  for  in  §  140,  Jud.  Code  (Appendix, 
post ) . 

The  bond  of  assistant  clerk  is  provided  for  in  §  141,  Jud.  Code 
(Appendix,  post). 

Whoever  has  been  elected  a  senator,  member  of  or  delegate  to 
Congress,  or  resident  commissioner  is  disqualified  during  his  term 
of  office  to  practice  in  the  Court  of  Claims,  §  144,  Jud.  Code  (Ap- 
pendix, post). 

§  142,  Jud.  Code  (Appendix,  post),  provides  for  the  settling  of 
accounts  of  Court  of  Claims  by  its  clerk,  under  proper  bond. 

§  1431.  Sessions.  The  Court  of  Claims  shall  hold  one  annual 
session  at  the  city  of  Washington,  beginning  the  first  Monday 


§  1432,  Ch.  68      MANUAL  OF  FEDERAL  PROCEDURE.  534 

in  December,  any  three  judges  of  said  court  constituting  a 
quorum.  The  concurrence  of  three  judges  is  necessary  for  a 
decision.  §  138,  Jud.  Code  (Appendix,  post). 

§  1432.  Jurisdiction.  The  Court  of  Claims  shall  have  juris- 
diction to  hear  and  determine  all  claims  (except  for  pensions), 
founded  upon  the  Constitution  of  the  United  States,  or  any  law 
of  Congress,  or  on  any  regulation  of  an  executive  department, 
upon  any  contract  with  the  government  of  the  United  States  in 
cases  not  sounding  in  tort ;  excepting  all  Civil  War  claims.  Also 
all  sctoffs,  counterclaims,  claims  for  damages,  or  other  demands 
whatsoever  on  the  part  of  the  government  of  the  United  States, 
against  any  claimant  against  the  government  in  said  court;  ex- 
cepting an  action  for  recovery  of  fees,  due  for  services  performed 
by  an  officer  of  the  United  States,  until  account  of  said  fees  shall 
have  been  rendered  and  acted  upon  as  required  by  law.  Also  any 
claim  of  a  paymaster,  quartermaster,  or  other  disbursing  officer 
of  the  United  States  for  loss  of  goods  by  capture.  §  145,  Jud. 
Code  (Appendix,  post). 

The  jurisdiction  of  said  court  shall  not  extend  to  any  claim, 
not  pending  therein  on  December  1,  18'6>2,  growing  out  of  any 
treaty  with  foreign  nations  or  Indian  tribes.  §  153,  Jud.  Code 
(Appendix,  post). 

An  act  conferring  jurisdiction -in  the  Court  of  Claims  to  hear, 
determine  and  render  judgment  in  claims  of  the  Sisseton  and 
Walepton  bands  of  Sioux  Indians  against  the  United  States. 
Right  of  appeal  is  given  to  either  party  to  the  Supreme  Court  of 
the  United  States.  39  Stats.,  47,  c.  63. 

No  person  shall  file  and  prosecute  in  the  Court  of  Claims  or  in 
the  Supreme  Court  on  appeal  therefrom  any  claim  against  a  per- 
son claiming  authority  from  the  United  States  government  when 
such  claim  is  pending  elsewhere.  §  154,  Jud.  Code  (Appendix, 
post). 

Any  alien  whose  government  allows  citizens  of  the  United 
States  to  prosecute  claims  against  said  government  in  its  courts 


535  COURT  OF  CLAIMS.  Ch.  68,  §§  1432 

shall  be  accorded  the  same  privilege  in  the  United  States  Court 
of  Claims,  provided  the  court  has  jurisdiction  over  the  subject 
matter.  §  155,  Jud.  Code  (Appendix,  post). 

The  Court  of  Claims  shall  have  jurisdiction  to  hear  and  deter- 
mine all  claims  for  proceeds  of  abandoned  property  and  to  ad- 
judge said  claims.  §162,  Jud.  Code  (Appendix,  post). 

The  Court  of  Claims  has  jurisdiction  to  take  over  claims  trans- 
mitted to  it  by  any  other  executive  department  and  to  decide  all 
controverted  questions  of  fact  and  law,  provided,  however,  it  has 
been  transmitted  with  the  consent  of  the  claimant,  and  report 
its  findings  to  the  department.  §  148,  Jud.  Code  (Appendix, 
post). 

All  claims  transmitted  to  Court  of  Claims  by  head  of  depart- 
ments shall  be  proceeded  in  as  other  claims  pending  in  the  Court 
of  Claims  and  subject  to  the  same  rules  and  regulations.  §  149, 
Jud.  Code  (Appendix,  post). 

Whenever  any  bill  is  pending  in  either  house  of  Congress  pro- 
viding for  payment  of  a  claim  against  the  United  States,  said 
bill  may  be  referred  to  Court  of  Claims  for  investigation  of  facts 
and  a  report  is  to  be  made  to  the  house  concerning  said  bill,  pro- 
vided the  court  has  jurisdiction  over  subject-matter  of  the  bill. 
§  151,  Jud.  Code  (Appendix,  post). 

§  180,  Jud.  Code  (Appendix,  post),  provides  for  the  settlement 
and  adjustment  by  the  Court  of  Claims  of  debts  due  to  the  United 
States. 

§5261,  R«v.  Stats.  (10  U.  S.  Comp.  Stats.  1916,  §10,068, 
p.  12,322),  provides  for  the  right  of  any  railway  company  to 
bring  suit  in  the  Court  of  Claims  on  bonds  issued  to  said  com- 
pany, the  interest  on  which  has  not  been  paid. 

Every  owner  of  a  patent  may  bring  suit  to  recover  in  the  Court 
of  Claims  for  the  unlicensed  use  of  said  patent  by  the  United 
States.  (Act  June  25,  1910,  c.  423;  9  U.  S.  Comp.  Stats.  1916, 
§  9465,  p.  10,457.) 


§§  1433-1434,  Ch.  68    MANUAL,  OF  FEDERAL  PROCEDURE.  536 

§  1433.  Statute  of  Limitations.  Every  claim  cognizable  by 
the  Court  of  Claims  shall  be  forever  barred  unless  filed  as  pro- 
vided by  law  within  six  years  after  said  claim  accrues,  except- 
ing in  a  case  of  married  women,  infants  and  idiots,  lunatics,  and 
insane  persons,  and  persons  beyond  the  seas,  and  in  this  case 
within  three  years  after  disability  has  ceased.  §  156,  Jud.  Code 
(Appendix,  post). 

§  1434.  Rules  of  Practice.  §  157,  Jud.  Code  (Appendix, 
post),  provides  for  powers  of  the  court  to  establish  its  rules  of 
government  and  practice. 

The  claimant  in  all  cases  must  set  forth  fully  his  claim  in  his 
petition,  the  action  of  Congress  or  any  department  upon  the  same, 
and  persons  interested  therein.  When  and  upon  what  consider- 
ation said  persons  became  interested,  that  there  is  no  assignment 
or  transfer  of  interest  on  said  Claim  except  as  is  stated  in  the 
petition.  That  said  claimant  is  justly  entitled  to  the  amount 
claimed  from  the  United  States,  after  allowing  all  just  credits 
and  offsets.  That  the  claimant,  if  a  citizen,  has  at  all  times 
borne  true  allegiance  to  the  government  of  the  United  States 
and  whether  a  citizen  or  not,  has  in  no  way  aided  or  abetted  or 
given  encouragement  to  a  rebellion  against  the  United  States, 
the  petition  shall  be  verified  by  the  said  claimant,  his  attorney 
or  agent.  §  159,  Jud.  Code  (Appendix,  post). 

The  judges  and  clerks  of  said  court  may  administer  oaths  and 
affirmations  and  take  acknowledgments  of  instruments  in  writ- 
ing and  give  certificates  of  the  same.  §  158,  Jud.  Code  (Appen- 
dix, post). 

As  to  whether  a  person  aided  or  not  the  rebellion,  known  as  the 
Civil  "War,  is  a  jurisdictional  fact  to  be  considered  before  allowing 
the  claim ;  in  the  case  of  a  claim  against  the  United  States  for 
stores  furnished  the  army  or  navy.  §  184,  Jud.  Code  (Appendix, 
post). 

The  Attorney  General  or  his  assistants  under  his  direction  shall 
appear  for  the  defense  and  protection  of  the  interests  of  the 


537  COURT  OF  CLAIMS.  Ch.  68,  §  1434 

United  States  in  all  cases  which  may  be  transmitted  to  the  Court 
of  Claims.  §185,  Jud.  Code  (Appendix,  post). 

No  claims  shall  be  allowed  by  the  accounting  officers  or  the 
Court  of  Claims  wherein  the  claimant  claims  more  than  is  justly 
due;  and  does  this  with  the  intent  to  defraud  the  United  States. 
§  173,  Jud.  Code  (Appendix,  post). 

In  cases  where  the  claimant  corruptly  practices  or  attempts 
to  practice  fraud  against  the  United  States  in  representing  his 
claim,  the  claimant  shall  "ipso  facto"  fbrfeit  his  claim  forever, 
and  this  is  a  bar  to  further  prosecution  of  the  same.  §  172,  Jud. 
Code  (Appendix,  post). 

When  the  facts  set  out  in  petition  appear  in  the  mind  of  the 
court  insufficient  for  grounds  of  relief,  the  court  shall  not  au- 
thorize the  taking  of  any  testimony.  §  165,  Jud.  Code  (Appen- 
dix, post). 

§  160,  Jud.  Code  (Appendix,  post),  provides  for  traverse  by  the 
government  in  allegations  as  to  true  allegiance  and  not  aiding 
or  abetting  any  rebellion  against  the  United  States.  And  also 
if  said  issues  are  decided  against  the  claimant,  said  petition  shall 
be  dismissed. 

The  burden  of  proof  is  on  the  claimant  in  all  actions  regarding 
the  loyalty  or  disloyalty  of  individuals  during  the  Civil  War. 
§  161,  Jud.  Code  (Appendix,  post). 

The  method  of  taking  testimony  to  be  used  before  the  Court 
of  Claims  is  by  commission.  The  Court  of  Claims  shall  have 
the  right  to  appoint  commissioners  to  take  testimony  and  also  gives 
power  to  prescribe  the  fees  they  are  to  receive.  §  163,  Jud.  Code 
(Appendix,  post). 

§  167,  Jud.  Code  (Appendix,  post),  provides  that  the  testimony 
in  cases  pending  in  the  Court  of  Claims  shall  be  taken  in  the 
county  in  which  the  witness  resides,  when  the  same  can  be  done 
conveniently. 

§  168,  Jud.  Code  (Appendix,  post),  provides  for  the  issuing  of 
subpoenas  by  the  Court  of  Claims. 


§  1440,  Ch.  68          MANUAL   OF   FEDERAL   PROCEDURE.  540 

justment  of  claims  against  the  United  States.  The  purpose  of 
these  reports  is  to  furnish  guides  in  like  cases. 

The  Attorney  General  shall  report  to  Congress,  at  the  beginning 
of  each  regular  session,  the  suits  under  section  180,  Jud.  Code  (Ap- 
pendix, post),  in  which  a  final  judgment  or  decree  has  been  ren- 
dered, giving  date  and  statement  of  costs  in  each  case.  §  183, 
Jud.  Code  (Appendix,  post). 

The  payment  on  claims  referred  from  departments  and  decided 
by  the  Court  of  Claims  in  favor  of  the  claimant  shall  be  made  out 
of  any  specific  appropriation  applicable  to  the  case,  and  where  no 
appropriation  exists  it  shall  be  paid  in  same  manner  as  any  other 
decree  of  said  court.  §  150,  Jud.  Code  (Appendix,  post).  • 

Reports  of  the  Court  of  Claims  to  Congress  under  §  148  and 
§151,  Jud.  Code  (Appendix,  post),  if  not  acted  upon  during 
session  at  which  they  were  reported,  shall  be  continued  from 
session  to  session  and  Congress  to  Congress  until  finally  acted 
upon.  §  187,  Jud.  Code  (Appendix,  post). 

All  judgments  in  favor  of  the  government,  on  setoffs  or  counter- 
claims, shall  be  enforced  the  same  as  any  other  judgment  of  said 
court  would  be  enforced.  §146,  Jud.  Code  (Appendix,  post). 

§  1440.  Appeals.  The  United  States  or  the  claimant  shall 
have  the  right  to  appeal  as  provided  and  restricted  according  to 
law.  §181,  Jud.  Code  (Appendix,  post). 

In  Indian  cases  the  United  States  or  the  tribe  of  Indians,  or  other 
party  in  interest,  shall  have  the  right  of  appeal  as  prescribed  and 
provided  for  by  law.  §  182,  Jud.  Code  (Appendix,  post). 


541  COURT  OF  CUSTOMS  APPEALS.      Ch.  69,  §§  1450-1451 


CHAPTER  69. 
COUBT  OF  CUSTOMS  APPEAIA 

SEO. 

1450.  In  General. 

1451.  General   Appraisers — Board   of. 

1452.  Court  of  Customs  Appeals — Organization. 

1453.  Sessions. 

1454.  Jurisdiction. 

1455.  Time  for  Appeal  from  Board  of  General  Appraisers. 

1456.  Calendar. 

§  1450.  In  General.  The  court  of  customs  appeals  was  estab- 
lished in  1909  to  have  appellate  jurisdiction  over  matters  decided 
by  the  board  of  general  appraisers.  This  jurisdiction  was  exer- 
cised prior  to  1909  by  the  circuit  courts  of  the  United  States.  An 
appeal  lay  to  the  circuit  court  of  appeals  and  from  there  to  the 
Supreme  Court  of  the  United  States  in  cases  provided.  The  court 
of  customs  appeals  has  superseded  the  jurisdiction  of  the  circuit 

courts  in  these  matters,  and  its  judgment  is  final. 

r;.-;  '..  ,(.1^4  .b3  ,d  8ii.t7SO  .«  II  MX  .'K>bA-yrVL  .v  gB&fenioiT) 

§  1451.  General  Appraisers — Board  of.  There  are  nine  gen- 
eral appraisers  of  merchandise,  appointed  by  the  President,  by 
and  with  the  consent  of  the  Senate.  They  are  employed  at  such 
ports  as  are  designated  by  the  Secretary  of  the  Treasury.  It  is 
the  duty  of  a  general  appraiser  to  revise  and  correct  the  reports 
of  the  assistant  appraisers.  He  also  must  reappraise  any  mer- 
chandise when  the  collector  deems  the  appraisement  too  low,  or 
when  the  importer,  owner,  agent,  or  consignee  of  the  merchandise 
is  dissatisfied  with  the  appraisement.  The  decision  of  the  ap- 
praiser, unless  objection  is  made  to  it,  is  final  and  conclusive  as  to 
the  dutiable  value  of  such  merchandise  against  all  parties  interested 
therein. 

The  board  of  general  appraisers  consists  of  three  of  the  general 
appraisers,  which  are  on  duty  at  the  port  of  New  York.  If  the 


§  1440,  Ch.  68      MANUAL  OP  FEDERAL  PROCEDURE.  540 

justment  of  claims  against  the  United  States.  The  purpose  of 
these  reports  is  to  furnish  guides  in  like  cases. 

The  Attorney  General  shall  report  to  Congress,  at  the  beginning 
of  each  regular  session,  the  suits  under  section  180,  Jud.  Code  (Ap- 
pendix, post),  in  which  a  final  judgment  or  decree  has  been  ren- 
dered, giving  date  and  statement  of  costs  in  each  case.  §  183, 
Jud.  Code  (Appendix,  post). 

The  payment  on  claims  referred  from  departments  and  decided 
by  the  Court  of  Claims  in  favor  of  the  claimant  shall  be  made  out 
of  any  specific  appropriation  applicable  to  the  case,  and  where  no 
appropriation  exists  it  shall  be  paid  in  same  manner  as  any  other 
decree  of  said  court.  §  150,  Jud.  Code  (Appendix,  post).  • 

Reports  of  the  Court  of  Claims  to  Congress  under  §  148  and 
§151,  Jud.  Code  (Appendix,  post),  if  not  acted  upon  during 
session  at  which  they  were  reported,  shall  be  continued  from 
session  to  session  and  Congress  to  Congress  until  finally  acted 
upon.  §  187,  Jud.  Code  (Appendix,  post). 

All  judgments  in  favor  of  the  government,  on  setoffs  or  counter- 
claims, shall  be  enforced  the  same  as  any  other  judgment  of  said 
court  would  be  enforced.  §  146,  Jud.  Code  (Appendix,  post). 

§1440.  Appeals.  The  United  States  or  the  claimant  shall 
have  the  right  to  appeal  as  provided  and  restricted  according  to 
law.  §181,  Jud.  Code  (Appendix,  post). 

In  Indian  cases  the  United  States  or  the  tribe  of  Indians,  or  other 
party  in  interest,  shall  have  the  right  of  appeal  as  prescribed  and 
provided  for  by  law.  §  182,  Jud.  Code  (Appendix,  post). 


541  COURT  OF  CUSTOMS  APPEALS.      Ch.  69,  §§  1450-1451 


CHAPTER  69. 
COURT  OF  CUSTOMS  APPEALa 

8EO. 

1450.  In  General. 

1451.  General    Appraisers — Board    of. 

1452.  Court  of  Customs  Appeals — Organization 

1453.  Sessions. 

1454.  Jurisdiction. 

1455.  Time  for  Appeal  from  Board  of  General  Appraisers. 

1456.  Calendar. 

§  1450.  In  General.  The  court  of  customs  appeals  was  estab- 
lished in  1909  to  have  appellate  jurisdiction  over  matters  decided 
by  the  board  of  general  appraisers.  This  jurisdiction  was  exer- 
cised prior  to  1909  by  the  circuit  courts  of  the  United  States.  An 
appeal  lay  to  the  circuit  court  of  appeals  and  from  there  to  the 
Supreme  Court  of  the  United  States  in  cases  provided.  The  court 
of  customs  appeals  has  superseded  the  jurisdiction  of  the  circuit 
courts  in  these  matters,  and  its  judgment  is  final. 

§  1451.  General  Appraisers — Board  of.  There  are  nine  gen- 
eral appraisers  of  merchandise,  appointed  by  the  President,  by 
and  with  the  consent  of  the  Senate.  They  are  employed  at  such 
ports  as  are  designated  by  the  Secretary  of  the  Treasury.  It  is 
the  duty  of  a  general  appraiser  to  revise  and  correct  the  reports 
of  the  assistant  appraisers.  He  also  must  reappraise  any  mer- 
chandise when  the  collector  deems  the  appraisement  too  low,  or 
when  the  importer,  owner,  agent,  or  consignee  of  the  merchandise 
is  dissatisfied  with  the  apprnisement.  The  decision  of  the  ap- 
praiser, unless  objection  is  made  to  it,  is  final  and  conclusive  as  to 
the  dutiable  value  of  such  merchandise  against  all  parties  interested 
therein. 

The  board  of  general  appraisers  consists  of  three  of  the  general 
appraisers,  which  are  on  duty  at  the  port  of  New  York.  If  the 


§  1452,  Ch.  69      MANUAL  OF  FEDERAL  PROCEDURE.  542 

decision  of  the  general  appraiser  as  to  the  dutiable  value  of  the 
merchandise  is  unsatisfactory  to  the  importer,  owner,  consignee, 
or  agent,  or  to  the  collector,  and  notice  is  given  to  the  collector 
within  two  days  after  the  decision  of  the  general  appraiser,  the 
collector  must  transmit  the  invoice  and  all  the  papers  appertaining 
thereto,  to  the  board  of  general  appraisers,  at  New  York,  or  to  a 
board  of  three  general  appraisers,  at  that  port  or  any  other  port 
designated  by  the  Secretary  of  the  Treasury,  who  shall  examine 
the  case  thus  submitted,  and  decide  it. 

The  general  appraisers  are  judicial  officers  of  the  Treasury  De- 
partment, and  their  duty  is  confined  to  examining  the  case  sub- 
mitted to  them,  and  the  single  question  involved  is  the  dutiable 
value  of  the  merchandise. 

The  general  board  of  nine  general  appraisers  establishes  the 
rules  of  each  of  the  three  general  boards.1  By  the  act  of  October 
3,  1913,  c.  16,  last  part,  III,  N.,  38  Stats,  at  L.  187  (6  U.  S.  Comp. 
Stats.  1916,  §5595,  p.  6714),  the  determination  of  the  board  of 
general  appraisers  as  to  payment  of  duties  shall  be  final  "  except 
in  cases  where  an  appeal  shall  be  filed  in  the  United  States  court 
of  customs  appeals  within  the  time  and  manner  provided  by  law." 
(Louisiana  v.  McAdoo,  234  U.  S.  627,  58  L.  Ed.  1506,  34  Sup.  Ct. 
938.) 

§  1452.  Court  of  Customs  Appeals — Organization.  §  194,  Jud. 
Code  (Appendix,  post),  provides  for  the  organization'and  general 
powers  of  the  court  of  customs  appeals. 

§  188,  Jud.  Code  (Appendix,  post),  provides  that  there  shall  be 
a  United  States  court  of  customs  appeals  and  that  the  same  shall 
consist  of  a  presiding  judge  and  four  associate  judges;  each  ap- 
pointed by  the  President  with  the  consent  and  advice  of  the 
Senate.  Any  three  members  shall  constitute  a  quorum  and  a  con- 
currence of  three  members  shall  be  necessary  for  a  decision. 

l  Act  of  June  10,  1890,  26  Stats.  136,  pars.  12,  14,  15,  amended  July  24, 
1897,  amended  May  27,  1908,  35  Stats.  403,  21  Op.  Atty-Gen.  85;  United 
States  v.  Loeb,  107  Fed.  692,  46  C.  C.  A.  562;  23  Op.  Atty-Gen.  377;  In  re 
Muser,  49  Fed.  831;  United  States  v.  Newhall,  91  Fed.  525,  34  C,  C.  A.  690; 
United  States  v.  Beebe,  103  Fed.  785;  117  Fed.  670. 


5-13  COURT  OF  CUSTOMS  APPEALS.     Ch.  G9,  §§  1453  -1 1:4 

§191,  Jud.  Code  (Appendix,  post),  relates  to  the  clerk  of  the 
court  of  customs  appeals ;  states  his  duties,  compensation,  residence, 
powers  and  the  fees  he  may  charge  for  his  services. 

§192,  Jud.  Code  (Appendix,  post),  sets  out  the  fact  that  flie 
court  may  appoint  an  assistant  clerk  and  stenographic  clerks,  and 
states  what  their  compensation  shall  be.  Also  states  that  a  steno- 
graphic reporter  may  be  appointed  and  what  his  compensation 
may  be. 

§  190,  Jud.  Code  (Appendix,  post),  provides  that  a  marshal  may 
be  appointed  and  what  his  duties  and  powers  are  to  be.  Also  states 
what  he  is  allowed  for  compensation. 

§  193,  Jud.  Code  (Appendix,  post),  provides  that  the  marshal  of 
said  court  is  to  provide  suitable  rooms  and  furnishings  for  said 
court.  Also  provides  for  the  appointment  of  bailiffs  and  messen- 
gers of  court  and  their  compensation. 

§1453.  Sessions.  §189,  Jud.  Code  (Appendix,  post),  sets  out 
the  time  when  said  court  is  to  be  in  session,  and  what  compensa- 
tion a  judge  is  to  receive  when  traveling  and  how  the  expenses 
of  said  judge  are  to  be  paid. 

§  1454.  Jurisdiction.  §  195,  Jud.  Code,  as  amended  Act  Aug. 
22,  1914,  c.  267  (Appendix,  post),  provides  that  the  court  of 
customs  appeals  has  exclusive  appellate  jurisdiction  to  review  by 
appeal  the  final  decisions  of  the  general  board  of  appraisers  in 
all  cases  as  to  the  construing  of  the  law  and  all  issues  of  fact. 
It  sets  out  the  decisions  reviewable  in  the  court  of  customs  appeals. 

§  196,  Jud.  Code  (Appendix,  post),  provides  that  all  appeals  on 
customs  subject-matter  are  to  be  taken  to  the  United  States  court  of 
customs  appeals. 

§  197,  Jud.  Code  (Appendix,  post),  provides  for  certification  of 
cases  pending  in  other  courts  to  the  court  of  customs  appeals. 


§§  1455-1456,  Cn.  69    MANUAL  OP  FEDERAL  PROCEDURE.  544 

§  1455.  Time  for  Appeal  from  Board  of  General  Appraisers. 
§198,  Jud.  Code  (Appendix,  post),  provides  for  appeal  from  de- 
cisions of  appraisers  and  states  such  appeal  shall  be  made  within 
sixty  days  after  entry  of  decree  or  judgment. 

§1456.  Calendar.  §199,  Jud.  Code  (Appendix,  post},  pro- 
vides for  a  court  calendar  and  the  calling  of  the  same  every  sixty 
days,  but  not  during  the  months  of  July  and  August. 


545  CIKCU1T  COURT  OP  APPEALS.      Ch.  70,  §§  1470-1471 


CHAPTER  70. 
CIECUIT  COURT  OF  APPEALS. 

SEC. 

1470.  Judicial   Circuits. 

1471.  Organization,  Judges,  Marshals,  Clerks  and  Deputies. 

1472.  Terms. 

1473.  Rules  of  Procedure. 

1474.  Admission  to  Practice. 

1475.  Reports  of  Decisions. 

§  1470.  Judicial  Circuits.  There  are  nine  judicial  circuits 
of  the  United  States  provided  for  in  chapter  6  of  the  Judicial  Code 
(Appendix,  post). 

§116,  Jud.  Code  (Appendix,  post),  sets  out  the  districts  in- 
cluded in  the  various  circuits.  First :  Rhode  Island,  Massachusetts, 
New  Hampshire  and  Maine,  to  which  by  Act  of  Jan.  28,  1915,  c.  22, 
Porto  Rico  was  added.  Second:  Vermont,  Connecticut,  and  New 
York.  Third :  Pennsylvania,  New  Jersey  and  Delaware.  Fourth : 
Maryland,  Virginia,  West  Virginia,  North  Carolina  and  South 
Carolina.  Fifth:  Georgia,  Florida,  Alabama,  Mississippi,  Louisi- 
ana, and  Texas.  Sixth:  Ohio,  Michigan,  Kentucky  and  Tennessee. 
Seventh :  'Indiana,  Illinois,  and  Wisconsin.  Eighth :  Nebraska, 
Minnesota,  Iowa,  Missouri,  Kansas,  Arkansas,  Colorado,  Wyo- 
ming, North  Dakota,  South  Dakota,  Utah.  Oklahoma,  and  New 
Mexico.  Ninth:  California,  Oregon,  Washington,  Nevada,  Idaho, 
Montana,  Arizona,  and  Hawaii. 

§  1471.  Organization,  Judges,  Marshals,  Clerks  and  Deputies. 
§  117,  Jud.  Code  (Appendix,  post),  provides  that  in  each  circuit 
there  be  a  circuit  court  of  appeals,  consisting  of  three  judges,  any 
two  forming  a  quorum.  It  is  a  court  of  record  with  appellate 
jurisdiction  as  limited  and  established  in  said  chapter  6,  Jud.  Code. 

§118,  Jud.  Code  (Appendix,  post),  sets  out  how  the  circuit 
judges  are  appointed,  the  number  of  circuit  judges  in  the  various 

Manual — 35 


§  1472,  Ch.  70         MANUAL   OF   FEDERAL  PROCEDURE.  54:6 

circuits,  the  compensation  received  by  them,  their  places  of  resi- 
dence, and  certain  of  their  duties. 

§  121,  Jud.  Code  (Appendix,  post),  states  how  and  the  manner 
in  which  the  terms  "circuit  justices"  and  "justices  of  a  circuit" 
are  to  be  used  in  this  title. 

§  119,  Jud.  Code  (Appendix,  post),  sets  out  in  what  manner  and 
how  the  allotments  of  various  circuit  court  judges  are  made  and 
the  reasons  for  said  allotment. 

§120,  Jud.  Code  (Appendix,  post),  states  the  duties  of  chief 
justice  of  the  Supreme  Court  and  his  associate  justice,  when  in 
attendance  of  any  session  of  the  circuit  court  of  appeals.  It  also 
provides  for  district  judges  sitting  on  the  circuit  court  of  appeals, 
and  that  a  judge  who  sat  in  the  court  below  is  disqualified  above. 

A  judge  who  sat  at  the  hearing  below  of  a  whole  cause  at  any 
stage  thereof  is  undoubtedly  disqualified  to  sit  in  the  circuit  court 
of  appeals  at  the  hearing  of  the  whole  cause  at  the  same  or  at  any 
later  stage.  (Moran  v.  Dillingham,  174  U.  S.  153,  43  L.  Ed.  930, 
19  Sup.  Ct.  620.)  A  decree  in  which  a  disqualified  judge  took  part 
will  be  quashed  and  set  aside  without  regard  to  the  merits.  (Ibid. ; 
American  Constr.  Co.  v.  Jacksonville  etc.  R.  Co.,  148  U.  S.  372,  37 
L.  Ed.  486,  13  Sup.  Ct.  758.) 

§  124,  Jud.  Code  (Appendix,  post),  concerns  the  appointment  of 
a  clerk,  and  sets  out  his  duties  pertaining  to  matters  within  the 
court's  jurisdiction. 

§  125;  Jud.  Code  (Appendix,  post),  sets  out  the  right  of  the  clerk 
to  appoint  deputies  subject  to  approval  by  the  court;  the  rights 
and  duties  of  said  deputies  in  case  of  death  of  clerk  and  their  lia- 
bilities ;  the  liabilities  of  administrator  and'  executor  upon  defaults 
and  misfeasances  caused  after  death  of  clerk. 

§  123,  Jud.  Code  (Appendix,  post),  sets  out  the  rights  and  duties 
of  United  States  marshals  in  reference  to  these  courts. 

§1472.  Terms.  §126,  Jud.  Code  (Appendix,  post),  provides 
for  terms  to  be  held  annually  by  the  circuit  court  of  appeals  in 
the  several  judicial  circuits  at  the  following  places  and  at  such 


547  CIRCUIT  COURT  OP  APPEALS.     Ch.  70,  §§  1473-1474 

times  as  fixed  by  the  court:  First  circuit,  Boston;  second  circuit, 
New  York;  third  circuit,  Philadelphia;  fourth  circuit,  Richmond: 
fifth  circuit,  New  Orleans,  Atlanta,  Fort  Worth  and  Montgomery ; 
sixth  circuit,  Cincinnati;  seventh  circuit,  Chicago;  eighth  circuit, 
St.  Louis,  Denver,  or  Cheyenne,  and  St.  Paul;  ninth  circuit  San 
Francisco,  and  each  year  in  two  other  places  in  said  circuit  to  be 
designated  by  judges  of  said  Court ;  and  in  each  of  the  above  cir- 
cuits, terms  may  be  held  at  such  other  times  and  places  as  may 
be  designated  by  each  respective  court. 

This  section  goes  on  to  state  that  there  are  certain  dates  on  which 
said  terms  shall  be  held  in  various  circuits,  and  what  matters  are 
to  be  taken  up  at  this  time. 

§  1473.  Rules  of  Procedure.  §  122,  Jud.  Code  (Appendix, 
post),  concerns  the  procedure  of  the  various  circuit  courts  of  ap- 
peals and  contains  all  information  regarding  seals,  writs,  and 
process  as  conformable  to  each  court's  jurisdiction.  Under  the 
authority  of  this  statute,  rules  have  been  promulgated  for  each 
of  the  nine  circuits. 

These  rules  are  so  similar  in  many  respects  that  they  are  printed 
in  our  Appendix  as  one  set  of  rules  with  notations  of  differences 
where  any  exist  in  any  of  the  several  circuits  from  the  general  rule 
existing  in  the  other  circuits. 

In  taking  an  appeal  in  any  circuit  these  rules  should  be  con- 
sulted. 

§  1474.  Admission  to  Practice.  Under  Rule  7  Circuit  Court  of 
Appeals  in  all  circuits,  an  attorney  may  be  admitted  to  practice 
in  the  circuit  court  of  appeals  when  admitted  to  practice  in  the 
Supreme  or  District  Court  of  the  United  States  on  taking  the 
oath  or  affirmation  in  the  form  prescribed  in  rule  2  of  the  Su- 
preme Court  of  the  United  States.  In  the  sixth,  eighth  and 
ninth  circuits  it  is  enough  if  the  attorney  has  been  admitted  to 
the  court  of  last  resort  in  the  state  of  his  residence  and  takes  the 
requisite  oaths.  Fees  are  prescribed  in  last-named  circuits. 


§  1475,  Ch.  70         MANUAL   OF   FEDERAL  PROCEDURE.  548 

§  1475.  Reports  of  Decisions.  All  decisions  from  the  time 
when  the  circuit  courts  of  appeals  were  established,  in  1891,  have 
been  reported  currently  in  the  Federal  Reporter,  and  are  now  re- 
ported also  in  the  C.  C.  A.  Reports,  of  which  there  are  now  more 
than  one  hundred  volumes. 


549  APPELLATE  JURISDICTION   OF   C.   C.  A.      Ch.  71,  §1500 


CHAPTER  71. 

APPELLATE  JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS. 

SEC. 

1500.  Appellate  Jurisdiction. 

1501.  Appeal  and  Error  from  District  Courts  to  Circuit  Court  of  Appeals. 

1502.  Appeals   from   Interlocutory   Orders  in   Injunction   and   Receivership 

Proceedings  in  District  Courts. 

1503.  Appellate  and  Supervisory  Jurisdiction  in  Bankruptcy  Cases. 

1504.  Appeal  and  Error  from  the  United  States  Court  for  China. 

1505.  Appeals  and  Writs  of  Error  from  District  Court  for  Alaska. 

1506.  Place  of  Hearing  of  Appeals  and  Writs  of  Error  from  Alaska. 

1507.  Appellate  Jurisdiction  from  District  Court  Canal  Zone. 

1508.  Appellate  Jurisdiction — The  Danish  West  Indian  Islands. 

1509.  Appellate  Jurisdiction — Porto  Rico. 

1510.  Powers  and  Duties  of  Judges  upon  Appeal. 

§  1500.  Appellate  Jurisdiction.  The  jurisdiction  of  the  circuit 
courts  of  appeals  is  wholly  appellate,  and  is  governed  by  chapter 
6,  Jud.  Code,  §  128  et  seq.,  which  sections  are  largely  re-enactments 
of  the  act  of  Mar.  3,  1891,  c.  517. 

The  jurisdiction  includes  not  only  appeals  and  writs  of  error 
from  certain  final  decisions  in  district  courts,  under  §  128,  Jud. 
Code  (§  1501,  post),  including  Hawaii  and  Porto  Rico,  and  under 
§  134,  Jud.  Code  (§  1505,  post),  Alaska,  but  also  appeals  from  in- 
terlocutory orders  granting,  refusing,  dissolving,  or  refusing  to 
dissolve  an  injunction,  or  appointing  a  receiver,  under  §  129,  Jud. 
Code  (§  1502,  post),  and  in  bankruptcy  cases  under  §  130,  Jud. 
Code  (§1503,  post),  and  appeals  and  writs  of  error  from  the 
United  States  court  for  China,  under  §  131,  Jud.  Code  (§  1504, 
post),  and  in  the  fifth  circuit  from  final  judgments  and  decrees  of 
the  district  courts  in  the  Canal  Zone,  under  part  §  9,  Act  Aug.  24, 
1912,  c.  390  (§  1507,  post).  As  to  Danish  West  India  and  Porto 
Rico,  see  §§  1508,  1509,  below. 


§  1501,  Ch.  71         MANUAL,  OP  FEDERAL  PROCEDURE.  550 

§  1501.  Appeal  and  Error  from  District  Courts  to  Circuit 
Court  of  Appeals. 

§  128,  Jud.  Code  (as  amended  Act  Jan.  28,  1915,  c.  22,  §  2, 
Re-enacting  part  of  §  6,  Act  of  March  3,  1891,  26  Stats.  828} . 
"The  circuit  court  of  appeals  shall  exercise  appellate  juris- 
diction to  review  by  appeal  or  writ  of  error  final  decisions1 
in  the  district  courts,  including  the  United  States  district 
court  for  Hawaii  and  the  United  States  district  court  for 
Porto  Kieo,  in  all  cases  other  than  those  in  which  appeals  and 
writs  of  error  may  be  taken  direct  to  the  Supreme  Court,  as 
provided  in  section  two  hundred  and  thirty-eight,  unless  other- 
wise provided  by  law;  and,  except  as  provided  in  sections  two 
hundred  and  thirty-nine  and  two  hundred  and  forty,  the  judg- 
ments and  decrees  of  the  circuit  court  of  appeals  shall  be  final2 
in  all  cases  in  which  the  jurisdiction  is  dependent  entirely 
upon  the  opposite  parties  to  the  suit  or  controversy  being 
aliens  and  citizens  of  the  United  States  or  citizens  of  different 
states;  also  in  all  cases  arising  under  the  patent  laws,  under 
the  trademark  laws,  under  the  copyright  laws,  under  the 
revenue  laws,  and  under  the  criminal  laws,  and  in  all  ad- 
miralty cases."  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  607;  2  U.  S. 
Comp.  State..  1916,  §  1120;  Foster's  Federal  Practice,  5th  ed., 
pp.  1979,  2374,  2410,  2436;  Simkins'  Federal  Equity  Suit,  3d 
ed.,  p.  622.) 

Final  judgments  and  decrees  appealable  from  district  courts 
to  the  circuit  court  of  appeal  are  determined  by  a  process  of  elimi- 
nation, and  include  "all  final  decisions  in  district  courts,  in  all 
cases  other  than  those  in  which  appeals  and  writs  of  error  may  be 
taken  direct  to  the  Supreme  Court,  as  provided  in  §  238,  Jud.  Code, 
unless  otherwise  provided  by  law." 

1  "Final  decision"  means  a  final  decision  which  was  then  appealable"  under 
the  existing  law. 

North  American  Trading  Co.  v.  Smith,  93  Fed.  7,  35  C.  C.  A.  183.  Appel- 
late jurisdiction,  Four  Hundred  and  Forty-three  Cans  of  Frozen  Egg 
Product  v.  United  States.  226  U.  S.  172,  57  K  Ed.  174,  33  Sup.  Ct.  50,  re- 
versing United  States  v.  Four  Hundred  and  Forty-three  Cans  of  Frozen  Egg 
Product,  193  Fed.  589,  113  C.  C.  A.  457. 

2  Final   decisions  of  C.   C.  A.,  see  Missouri,  Kansas   &   Texas   Ey.   Co.   v. 
Wulf,  226  U.  S.  570,  57  L.  Ed.  355,  33  Sup.  Ct.  135. 

Final  decisions  of  districts  courts,  In  re  Metropolitan  Trust  Co.,  218 
U.  S.  312,  54  L.  Ed.  1061,  31  Sup.  Ct.  18. 


551  APPELLATE  JURISDICTION  OP  C.  C.  A.      Ch.  71,  §§  1502-1503 

§  1502.    Appeals  from  Interlocutory  Orders  in  Injunction  and 
Receivership  Proceedings  in  District  Courts. 

§  129,  Jud.  Code  (Re-enacting  §  7,  Act  of  March  3,  1891,  31 
Stats.  660).  "Where  upon  a  hearing  in  equity  in  a  district 
court,  or  by  a  judge  thereof  in  vacation,  an  injunction  shall 
be  granted,  continued,  refused,  or  dissolved  by  an  inter- 
locutory order  or  decree,  or  an  application  to  dissolve  an  in- 
junction shall  be  refused,  or  an  interlocutory  order  or  decree 
shall  be  made  appointing  a  receiver,  an  appeal  may  be  taken 
from  such  interlocutory  order  or  decree  granting,  continuing, 
refusing,  dissolving,  or  refusing  to  dissolve  an  injunction,  or 
appointing  a  receiver  to  the  circuit  court  of  appeals,  notwith- 
standing an  appeal  in  such  case  might,  upon  final  decree  under 
the  statutes  regulating  the  same,  be  taken  directly  to  the  Su- 
preme Court:  Provided,  That  the  appeal  must  be  taken  with- 
in thirty  days  from  the  entry  of  such  order  or  decree,  and  it 
shall  take  precedence  in  the  appellate  court ;  and  the  proceed- 
ings in  other  respects  in  the  court  below  shall  not  be  stayed 
unless  otherwise  ordered  by  that  court,  or  the  appellate  court, 
or  a  judge  thereof,  during  the  pendency  of  such  appeal :  Pro- 
vided, however,  That  the  court  below  may,  in  its  discretion, 
require  as  a  condition  of  the  appeal  an  additional  bond."  (36 
Stats.  1134;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  629;  2  U.  S.  Comp. 
Stats.  1916,  §  1121,  p.  1444;  Foster's  Federal  Practice,  5th  ed., 
pp.  930, 1943,  2411,  2436 ;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  626,  627,  628,  629.) 

The  purpose  of  this  section  is  to  save  the  parties  from  the  ex- 
pense of  further  litigation  should  the  appellate  court  be  of  the 
opinion  that  plaintiff  was  not  entitled  to  an  injunction  because 
his  bill  had  no  equity  to  support  it.  '(Smith  v.  Vulcan  Iron 
Works,  165  U.  S.  518,  41  L.  Ed.  810,  17  Sup.  Ct.  407 ;  Jackson 
Co.  v.  Gardiner  Inv.  Co.,  200  Fed.  113,  118  C.  C.  A.  287; 
Pioneer  Lace  Mfg.  Co.  v.  Dodd,  181  Fed.  688,  104  C.  C.  A.  586 ; 
Pressed  Steel  Car  Co.  v.  Chicago  &  A.  B.  Co.,  192  Fed.  517,  113 
C.  C.  A.  73.) 

§  1503.    Appellate  and  Supervisory  Jurisdiction  in  Bankruptcy 
Cases. 

§  130,  Jud.  Code.  "The  circuit  courts  of  appeals  shall  have 
the  appellate  and  supervisory  jurisdiction  conferred  upon 
them  by  the  act  entitled,  'An  Act  to  Establish  a  Uniform 


§§  1504-1505,  Ch.  71     MANUAL  OP  FEDERAL  PROCEDURE.  552 

System  of  Bankruptcy  throughout  the  United  States,'  ap- 
proved July  1,  1898,  and  all  laws  amendatory  thereof,  and 
shall  exercise  the  same  in  the  manner  therein  prescribed." 
(36  Stats.  1134;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  643;  2  U.  S. 
Comp.  Stats.  1916,  §  1122.) 

This  section  is  only  declaratory  of  the  appellate  jurisdiction  con- 
ferred upon  the  circuit  court  of  appeals  by  §§  24  and  25  of  the 
bankruptcy  act  of  1898,  and  for  a  full  treatment  of  this  jurisdic- 
tion we  refer  to  that  act  and  to  the  various  works  on  bankruptcy. 

§  1504.  Appeal  and  Error  from  the  United  States  Court  for 
China. 

§  131,  Jud.  Code.  "The  circuit  court  of  appeals  for  the 
ninth  circuit  is  empowered  to  hear  and  determine  writs  of 
error  and  appeals  from  the  United  States  court  for  China  as 
provided  in  the  act  entitled,  '  An  Act  Creating  a  United  States 
Court  for  China  and  Prescribing  the  Jurisdiction  Thereof,' 
approved  June  30,  1906."  (36  Stats.  1134;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  643;  2  U.  S.  Comp.  Stats.  1916,  §  1123;  Fos- 
ter's Federal  Practice,  5th  ed.,  pp.  280,  2411,  2539.) 

This  section,  like  the  preceding  one,  is  merely  declaratory  of 
the  appellate  jurisdiction  conferred  by  §  3  of  the  act  referred  to. 

§1505.  Appeals  and  Writs  of  Error  from  District  Court  for 
Alaska. 

§  1 34,  Jud.  Code.  ' '  In  all  cases  other  than  those  in  which 
a  writ  of  error  or  appeal  will  lie  direct  to  the  Supreme  Court 
of  the  United  States  as  provided  in  §  247,  in  which  the  amount 
involved  or  the  value  of  the  subject-matter  in  controversy 
shall  exceed  five  hundred  dollars,  and  in  all  criminal  cases, 
writs  of  error  and  appeals  shall  lie  from  the  district  court  for 
Alaska  or  from  any  division  thereof  to  the  circuit  court  of 
appeals  for  the  ninth  circuit,  and  the  judgments,  orders,  and 
decrees  of  said  court  shall  be  final  in  all  such  cases.  But  when- 
ever such  circuit  court  of  appeals  may  desire  the  instruction 
of  the  Supreme  Court  of  the  United  States  upon  any  question 
or  proposition  of  law  which  shall  have  arisen  in  any  such  case, 
the  court  may  certify  such  question  or  proposition  to  the  Su- 


553  APPELLATE  JURISDICTION  OF  C.  C.  A.       Ch.  71,  §§  1506-1507 

preme  Court,  and  thereupon  the  Supreme  Court  shall  give  its 
instruction  upon  the  question  or  proposition  certified  to  it, 
and  its  instruction  shall  be  binding  upon  the  circuit  court  of 
appeals."  (36  Stats.  1134;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  644; 
2  U.  S.  Comp.  Stats.  1916,  §  1125;  Foster's  Federal  Practice, 
5th  ed.,  pp.  2411,  2437,  2539.) 

§  1506.    Place  of  Hearing  of  Appeals  and  Writs  of  Error  from 
Alaska. 

§  135,  Jud.  Code.  "All  appeals  and  writs  of  error,  and 
other  cases,  coming  from  the  district  court  for  the  district  of 
Alaska  to  the  circuit  court  of  appeals  for  the  ninth  circuit, 
shall  be  entered  upon  the  docket  and  heard  at  San  Francisco, 
California,  or  at  Portland,  Oregon,  or  at  Seattle,  Washington, 
as  the  trial  court  before  whom  the  case  was  tried  below  shall 
fix  and  determine :  Provided,  That  at  any  time  before  the  hear- 
ing of  any  appeal,  writ  of  error,  or  other  cases,  the  parties 
thereto,  through  their  respective  attorneys,  may  stipulate  at 
which  of  the  above-named  places  the  same  shall  be  heard,  in 
which  case  the  case  shall  be  remitted  to  and  entered  upon  the 
docket  at  the  place  so  stipulated,  and  shall  be  heard  there." 
(36  Stats.  1135;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  646;  2  U.  S. 
Comp.  Stats.  1916,  §  1126.) 

§  1507.    Appellate   Jurisdiction   from   District    Court    Canal 
Zone. 

Part  §  9,  Act  Aug.  24,  1912,  c.  390  (Re-enacting  Act  of  Jan. 
11,  1909,  c.  15,  35  Stats,  at  L.  585).  "The  circuit  court  of 
appeals  of  the  fifth  circuit  of  the  United  States  shall  have 
jurisdiction  to  review,  revise,  modify,  reverse,  or  affirm  the 
final  judgments  and  decrees  of  the  district  court  of  the  Canal 
Zone  and  to  render  such  judgments  as  in  the  opinion  of  the 
said  appellate  court  should  have  been  rendered  by  the  trial 
court  in  all  actions  and  proceedings  in  which  the  Constitution, 
or  any  statute,  treaty,  title,  right,  or  privilege  of  the  United 
States,  is  involved  and  a  right  thereunder  denied,  and  in  cases 
in  which  the  value  in  controversy  exceeds  one  thousand  dol- 
lars, to  be  ascertained  by  "the  oath  of  either  party,  or  by  other 
»  competent  evidence,  and  also  in  criminal  causes  wherein  the 
offense  charged  is  punishable  as  a  felony.  And  such  appellate 


§§  1508-1509,  Ch.  71     MANUAL  OF  FEDERAL  PROCEDURE.  554 

jurisdiction,  subject  to  the  right  of  review  by  or  appeal  to  the 
Supreme  Court  of  the  United  States  as  in  other  cases  au- 
thorized by  law,  may  be  exercised  by  said  circuit  court  of 
appeals  in  the  same  manner,  under  the  same  regulations,  and 
by  the  same  procedure  as  nearly  as  practicable  as  is  done  in 
reviewing  the  final  judgments  and  decrees  of  the  district 
courts  of  the  United  States."  (37  Stats.  566;  Fed.  Stats. 
Ann.,  2d  ed.,  title  "Rivers,  Harbors  and  Canals";  10  U.  S. 
Comp.  Stats.  1916,  §  10,045.) 

§  1508.    Appellate    Jurisdiction — The    Danish    West    Indian 
Islands. 

Act  Mch.  3,  1917,  c.  171,  pt.  §2  (Courts,  etc.}.  ".  .  .  The 
jurisdiction  of  the  judicial  tribunals  of  said  islands  shall 
extend  to  all  judicial  proceedings  and  controversies  in  said 
islands  to  which  the  United  States  or  any  citizen  thereof  may 
be  a  party.  In  all  cases  arising  in  the  said  West  Indian  Is- 
lands and  now  reviewable  by  the  courts  of  Denmark,  writs 
of  error  and  appeals  shall  be  to  the  Circuit  Court  of  Appeals 
for  the  Third  Circuit,  and,  except  as  provided  in  sections  two 
hundred  and  thirty-nine  and  two  hundred  and  forty  of  the 
Judicial  Code,  the  judgments,  orders,  and  decrees  of  such 
court  shall  be  final  in  all  such  cases."  (U.  S.  Comp.  Stats. 
1916,  §  3924b ;  239  Fed.  Adv.  Sheets  No.  2,  Supp.,  p.  129.) 

• 
§1509.    Appellate  Jurisdiction — Porto  Rico. 

Act  March  2,  1917,  c.  145,  §42.  "(Appeals  and  removal 
of  causes  from  and  writs  of  error  and  certiorari  to  courts  of 
Porto  Rico;  terms  of  court  of  district  court;  pleadings  and 
proceedings  to  be  in  English  language ;  district  court  attached 
to  first  circuit;  appeals  to  and  review  by  circuit  court  of 
appeals  and  Supreme  Court  of  United  States.) 

"The  laws  of  the  United  States  relating  to  appeals,  writs 
of  error  and  certiorari,  removal  of  causes,  and  other  matters 
or  proceedings  as  between  the  courts  of  the  United  States  and 
the  courts  of  the  several  States  shall  govern  in  such  matters 
and  proceedings  as  between  the  district  court  of  the  United 
States  and  the  courts  of  Porto  Rico.  Regular  terms  of  said 
United  States  district  court  shall  be  held  at  San  Juan,  com- 
mencing on  the  first  Monday  in  May  and  November  of  each 


555  APPELLATE  JURISDICTION  OF  C.   C.   A.         Ch.  71,  §  1510 

year,  and  also  at  Ponce  on  the  second  Monday  in  February 
of  each  year,  and  special  terms  may  be  held  at  Mayaquez  at 
such  stated  times  as  said  judge  may  deem  expedient.  All 
pleadings  and  proceedings  in  said  court  shall  be  conducted  in 
the  English  language.  The  said  district  court  shall  be  at- 
tached to  and  included  in  the  first  circuit  of  the  United  States, 
with  the  right  of  appeal  and  review  by  said  circuit  court  of 
appeals  in  all  cases  where  the  same  would  lie  from  any  dis- 
trict court  to  a  circuit  court  of  appeals  of  the  United  States, 
and  with  the  right  of  appeal  and  review  directly  by  the  Su- 
preme Court  of  the  United  States  in  all  cases  where  a  direct 
appeal  would  be  from  such  district  courts."  (Fed.  Stats. 
Ann.,  2d  ed.,  1918  Supp.,  title  "Porto  Rico";  Pamph.  Supp. 
Nos.  9,  10,  January- April,  1917,  p.  94;  U.  S.  Comp.  Stats.  1917, 
Supp.  §  3803r,  Adv.  Sheets,  239  Fed.  No.  1,  p.  80.) 

Appellate  Jurisdiction  from  Supreme  Court,  Porto  Rico. 

Act  March  2, 1917,  c.  145,  §  43.  "Writs  of  error  and  appeals 
from  the  final  judgments  and  decrees  of  the  Supreme  Court 
of  Porto  Rico  may  be  taken  and  prosecuted  to  the  Circuit 
Court  of  Appeals  for  the  First  Circuit  and  to  the  Supreme 
Court  of  the  United  States,  as  now  provided  by  law."  (Fed. 
Stats.  Ann.,  2d  ed.,  1918  Supp.,  title  "Porto  Rico";  Pamph. 
Supp.  Nos.  9,  10,  January-April  1917,  p.  94 ;  U.  S.  Comp.  Stats. 
1917,  Supp.  §  3803rr,  Adv.  Sheets,  239  Fed.  No.  1,  p.  80.) 

§  1510.     Powers  and  Duties  of  Judges  upon  Appeal. 

§  132,  Jud.  Code  (Re-enacting  §  11  of  C.  C.  A.  Act  of  March 
3,  1891,  c.  517,  26  Stats,  at  L.  829).  "Any  judge  of  a  circuit 
court  of  appeals,  in  respect  of  cases  brought  or  to  be  brought 
before  that  court,  shall  have  the  same  powers  and  duties  as  to 
allowances  of  appeals  and  writs  of  error,  and  the  condition  of 
such  allowances,  as  by  law  belong  to  the  justices  or  judges  in 
respect  of  other  courts  of  the  United  States  respectively." 
(36  Stats.  1134;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  643;  2  U.  S. 
Comp.  State.  1916,  §1124;  Simkins'  Federal  Equity  Suit,  3d 
ed.,  p.  676.) 


§  1530,  Ch.  72  MANUAL  OF  FEDERAL,  PROCEDURE.  556 


CHAPTER  72. 

THE  SUPREME  COUET. 

sea 

1530.  Judges,  Clerks,  Deputies  and  Marshal. 

1531.  Supreme  Court  Reporter. 

1532.  Admission  to  Practice. 

1533.  Terms  and  Adjournments. 

1534.  Powers  and  Jurisdiction. 

§  1530.  Judges,  Clerks,  Deputies  and  Marshal.  §  215,  Jud. 
Code  (Appendix,  post),  provides  for  a  chief  justice  and  eight 
associate  justices,  any  six  constituting  a  quorum. 

§  216,  Jud.  Code  (Appendix,  post) ,  gives  precedence  to  judges 
in  order  of  commission,  except  when  same  date,  when  age  gives 
precedence. 

§217,  Jud.  Code  (Appendix,  post),  confers  on  associate  justice, 
who  is  first  in  precedence,  the  po'wers  of  chief  justice  when  there 
is  a  vacancy  or  when  the  chief  justice  is  incapable  of  performing 
the  duties  and  powers  of  his  office. 

§218,  Jud.  Code  (Appendix,  post),  provides  that  the  chief  jus- 
tice of  the  Supreme  Court  of  the  United  States  shall  receive  $15,000 
per  annum,  and  the  associate  justices  $14,500  each  per  annum,  pay- 
able monthly. 

§  219,  Jud.  Code  (Appendix,  post),  gives  the  Supreme  Court 
power  to  appoint  a  clerk  and  a  marshal,  and  a  reporter  of  its 
decisions. 

§  220,  Jud.  Code  (Appendix,  post),  relates  to  the  rights,  powers 
and  duties  of  the  clerk  of  the  Supreme  Court  of  the  U.  S.  Also 
provides  as  to  his  bond. 

§221,  Jud.  Code  (Appendix,  post),  sets  out  the  fact  that  depu- 
ties may  be  appointed  by  the  court  on  application  of  the  clerk; 
provides  as  to  the  misfeasances  and  defaults  of  said  deputies  and 
their  relation  to  the  clerk's  estate  in  case  of  his  death. 


557  THE  SUPREME  COURT.      Ch.  72,  §§  1531-1533 

§224,  Jud.  Code  (Appendix,  post).  The  marshal  is  entitled  to 
a  salary  of  $4,500  per  annum;  sets  out  his  duties,  rights  and 
powers;  states  he  may  appoint  assistants,  with  the  approval  of  the 
court. 

§  1531.  Supreme  Court  Reporter.  The  duties  of  the  reporter 
are  defined  in  §  225,  Jud.  Code,  his  salary  and  allowances  are  desig- 
nated in  §  226,  Jud.  Code,  and  the  distribution  of  reports  and 
digests  is  set  out  in  §  227,  Jud.  Code.  The  cost  of  these  books  and 
provision  for  additional  reports  and  digests  is  made  in  §  228,  Jud. 
Code.  Provision  is  made  for  distribution  of  sets  of  the  Federal 
Reporter  and  Digests  in  §  229,  Jud.  Code.  These  sections  may  be 
found  with  annotations  in  the  Appendix. 

§  1532.    Admission  to  Practice. 

Ride  2  of  the  Supreme  Court  of  the  United  States.  "1.  It 
shall  be  requisite  to  the  admission  of  attorneys  or  counselors 
to  practise  in  this  court,  that  they  shall  have  been  such  for 
three  years  past  in  the  supreme  courts  of  the  states  to  which 
they  respectively  belong,  and  that  their  private  and  profes- 
sional character  shall  appear  to  be  fair. 

"2.  They  shall  respectively  take  and  subscribe  the  following 
oath  or  affirmation,  viz. : 

"I, ,  do  solemnly  swear  [or  affirm]  that  I  will  de- 
mean myself,  as  an  attorney  and  counselor  of  this  court,  up- 
rightly, and  according  to  law ;  and  that  I  will  support  the  Con- 
stitution of  the  United  States. ' ' 

§255,  Jud.  Code  (Appendix,  post),  provides  that  any  woman  a 
member  of  the  bar  for  three  years,  of  good  standing,  good  moral 
character,  and  who  can  produce  such  record>  shall  be  admitted  to 
practice  before  the  Supreme  Court  of  the  United  States. 

§  1533.  Terms  and  Adjournments.  §  230,  Jud.  Code  (Ap- 
pendix, post).  The  Supreme  Court  holds  at  the  seat  of  govern- 
ment, one  term  annually,  commencing  on  the  second  Monday  in 


§  1534,  Ch.  72        MANUAL  OF  FEDERAL  PROCEDURE.  558 

October,  and  such  adjourned  or  special  terms  as  it  may  find 
necessary  in  its  dispatch  of  business. 

§231,  Jud.  Code  (Appendix,  post).  If,  at  any  session  of  the 
Supreme  Court,  a  quorum  does  not  attend  on  the  day  appointed 
for  holding  it,  the  justices  who  do  attend  may  adjourn  the  court 
from  day  to  day  for  twenty  days  after  said  appointed  time,  unless 
there  be  sooner  a  quorum.  If  a  quorum  does  not  attend  within 
said  twenty  days,  the  business  of  the  court  shall  be  continued  over 
till  the  next  appointed  session ;  and  if,  -  during  a  term,  after  a 
quorum  has  assembled,  less  than  that  number  attend  on  any  day, 
the  justices  attending  may  adjourn  the  court  from  day  to  day  until 
there  is  a  quorum,  or  may  adjourn  without  day. 

§  1534.  Powers  and  Jurisdiction.  §  233,  Jud.  Code  (Appendix 
post),  relates  to  the  jurisdiction  of  the  Supreme  Court  of  the 
United  States,  as  to  interstate  and  foreign  matters. 

§  235,  Jud.  Code  (Appendix,  post).  "The  trial  of  issues  of  fact 
in  the  Supreme  Court  in  all  actions  of  law  against  citizens  of  the 
United  States,  shall  be  by  Jury." 

§234,  Jud.  Code  (Appendix,  post),  sets  out  the  power  of  the 
court  to  issue  writs  of  prohibition  to  the  district  court  in  certain 
cases  and  the  power  to  issue  writs  of  mandamus  to  any  courts  or 
persons  holding  authority  under  the  United  States,  when  such  pro- 
ceedings will  be  warranted. 


JURISDICTION  OP  SUPKEME  COURT.  Ch.  73,  §  1556 


CHAPTER  73. 
APPELLATE  JURISDICTION  OF  SUPREME  COURT. 

SEC. 

1550.  In  General. 

1551.  Appeals  from  District  Courts  Direct  to  the  Supreme  Court. 

1552.  What  Constitutes  a  Question  of  Jurisdiction. 

1553.  Rules   for   Determining  the   Respective   Jurisdiction   of   the    Circuit 

Courts  of  Appeal,  and  the  Supreme  Court  W/here  the  Jurisdiction 
of  the  Court  is  in  Issue.  . 

1554.  Appeals  from  Final  Sentences  and  Decrees  in  Prize  Causes. 

1555.  Cases  Involving  the  Construction  or  Application  of  the  United  States 

Constitution. 

1556.  Constitutionality  of  United  States  Law,  or  Validity  or  Construction 

of  Treaty  Drawn  in  Question. 

1557.  State  Law  or  Constitution  Claimed  to  Contravene  the  Constitution  of 

the  United  States. 

1558.  Clauses  3,  4,  and  5  of  §  238,  Judicial  Code. 

1559.  Appeal  and  Error — Circuit  Court  of  Appeals  to  Supreme  Court. 

1560.  Appellate  Jurisdiction  of  the  Supreme   Court  in  Cases  from  Court 

of  Claims. 

1561.  Appeal    and    Error    to    Supreme    Court    from    Hawaii,    Porto  Rico, 

Alaska,  Philippine  Islands,  District  of  Columbia  and  Bankruptcy 
Courts. 

1562.  Prohibition,  Mandamus  and  Other  Writs  to  Revise  and  Correct  Pro- 

ceedings in  Lower  Courts,  and  Preserve  Jurisdiction. 

§  1550.  In  General.  The  appellate  jurisdiction  of  the  Su- 
preme Court  is  now  prescribed  by  chapter  10,  Jud.  Code,  §  236 
et  seq.  It  is  to  be  noted  that  the  "appellate  jurisdiction  conferred 
by  this  chapter  includes  jurisdiction  of  writs  of  error  as  well  as 
appeals,  and  the  most  of  the  sections  herein  quoted  apply  alike  to 
appellate  procedure  in  law  as  well  as  in  equity. 

The  appellate  jurisdiction  of  the  Supreme  Court,  as  herein 
treated,  is  divided  into  two  general  classes: 

1.  Appellate  jurisdiction  over  decisions  of  district  courts. 

2.  Appellate    jurisdiction    over    decisions    of    circuit    court   of 
appeals. 


§  1551,  Ch.  73  MANUAL  OP  FEDERAL  PROCEDURE.  560 

The  appellate  jurisdiction  of  the  Supreme  Court  over  state 
courts  is  treated  in  chapter  74,  under  the  head  of  "Writ  of  Error 
to  State  Court  of  Last  Resort. "  The  Supreme  Court  has  also  appel- 
late jurisdiction  over  the  decrees  of  the  Court  of  Claims,  the  courts 
of  Porto  Rico,  Hawaii,  Alaska,  the  Philippine  Islands,  District 
of  Columbia,  and  bankruptcy  courts. 

§  1551.  Appeals  from  District  Courts  Direct  to  the  Supreme 
Court. 

§555,  Jud.  Code,  as  amended  Act  Jan.  28,  1915,  c.  22 
(Drawn  from  Act  March  3,  1891,  §  5,  c.  517,  26  Stats,  at  L. 
827}.  "Appeals  and  writs  of  error  may  be  taken  from  the 
district  courts  including  the  United  States  district  court  for 
Hawaii  and  the  United  States  district  court  for  Porto  Rico, 
direct  to  the  Supreme  Court  in  the  following  cases: 

"  (1)  In  any  case  in  which  the  jurisdiction  of  the  court  is 
in  issue,  in  which  case  the  question  of  jurisdiction  alone  shall 
be  certified  to  the  Supreme  Court  from  the  court  below  for 
decision;  (2)  from  the  final  sentences  and  decrees  in  prize 
causes;  (3)  in  any  case  that  involves  the  construction  or  the 
application  of  the  Constitution  of  the  United  States;  (4)  in 
any  case  in  which  the  constitutionality  of  any  law  of  the 
United  States  or  the  validity  or  construction  of  any  treaty 
made  under  its  authority  is  drawn  in  question;  (5)  and  in, 
any  case  in  which  the  Constitution  or  law  of  a  state  is  claimed 
to  be  in  contravention  of  the  Constitution  of  the  United 
States."  (36  Stats.  1157;  38  Stats.  803;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  794;  2  U.  S.  Comp.  Stats.  1916,  §1215;  Foster's 
Federal  Practice,  5th  ed.,  pp.  1980,  2361,  2369,  2390,  2436, 
2456,  2539.) 

A  direct  appeal  is  allowed  to  the  Supreme  Court  from  orders 
affecting  the  Interstate  Commerce  Commission. 

Part  Act  October  22, 1913,  c.  32.  "...  An  appeal  may  be 
taken  direct  to  the  Supreme  Court  of  the  United  States  from 
the  order  granting  or  denying,  after  notice  and  hearing,  an  in- 
terlocutory injunction,  in  such  case  if  such  appeal  be  taken 
within  thirty  days  after  the  order,  in  respect  to  which  complaint 
is  made,  is  granted  or  refused ;  and  upon  the  final  hearing  of 


561  JURISDICTION  OP  SUPREME  COURT.  Ch.  73,  §  1552 

any  suit  brought  to  suspend  or  set  aside,  in  whole  or  in  part, 
any  order  of  said  commission  the  same  requirement  as  to 
judges  and  the  same  procedure  as  to  expedition  and  appeal 
.  shall  apply.  ...  A  final  judgment  or  decree  of  the  district 
court  may  be  reviewed  by  the  Supreme  Court  of  the  United 
States  if  appeal  to  the  Supreme  Court  be  taken  by  an  aggrieved 
party  within  sixty  days  after  the  entry  of  such  final  judgment 
or  decree,  and  such  appeals  may  be  taken  in  like  manner  as 
appeals  are  taken  under  existing  law  in  equity  cases.  And 
in  such  case  the  notice  required  shall  be  served  upon  the  de- 
fendants in  the  case  and  upon  the  attorney  general  of  the 
State."  (38  Stats.  220;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1113; 
1  U.  S.  Comp.  Stats.  1916,  pt.  §  998,  p.  836,  and  §  1000,  p.  837.) 

In  order  to  maintain  jurisdiction  in  the  Supreme  Court  in  the 
class  of  cases  covered  by  clause  No.  1,  of  the  above-quoted  section 
of  the  Judicial  Code,  the  record  must  distinctly  show,  without 
equivocation,  that  the  court  below  sends  up  for  consideration  the 
single  and  definite  question  of  jurisdiction.1 

No  other  question  except  that  of  jurisdiction  can  be  certified 
to  the  Supreme  Court  under  this  provision,  but  it  has  been  held2 
that  if  fhe  case  is  taken  to  the  Supreme  Court  on  the  single  ground 
of  jurisdiction  and  is  thus  before  that  court,  then  the  Supreme 
Court  will  pass  upon  questions  of  fact  where  the  decision  below  was 
erroneous,  and  may  then  set  aside  the  judgment  of  the  court  below. 

§  1552.  What  Constitutes  a  Question  of  Jurisdiction.  The 
question  of  jurisdiction  may  be  certified  to  the  Supreme  Court 
upon  the  following  grounds: 

(1)  Where  it  appears  that  process  has  not  been  served.8 

1  Arkansas  T.  Schlierholz,  179  TJ.  S.  600,  45  L.  Ed.  336,  21  Sup.  Ct.  229; 
Shields  v.  Coleman,  157  U.  S.  168,  39  L.  Ed.  660,  15  Sup.  Ct.  570;  Chappoll 
v.  United  States,  160  U.  S.  499,  40  L.  Ed.  510,  16  Sup.  Ct.  397;  Mexican 
C.  R.  Co.  v.  Echman,  187  U.  S.  429,  47  L.  Ed.  245,  23  Sup.  Ct.  211;  Cosmo- 
politan Mining  Company  T.  Walsh,  193  U.  S.  460,  48  L.  Ed.  749,  24  Sup.  Ct. 
489;  Anglo-American  Provision  Company  v.  Davis  Provision  Co.,  191  U.  S. 
376,  48  L.  Ed.  228,  24  Sup.  Ct.  93. 

2  Commercial  Mutual  Accident  Co.  v.  Davis,  231  U.  S.  256,  53  L.  Ed.  787, 
29  Sup.  Ct.  445. 

3  Board  of  Trade  v.  Hammond  Elevator  Co.,  198  U.  S.  424,  49  L.  Ed. 
1111,  25  Sup.  Ct.  740;  Remington  v.  Central  Pac.  R.  Co.,  198  U.  S.  95,  49 
L.  Ed.  959,  25  Sup.  Ct.  577;  Kendall  v.  American  Automatic  Loom  Co..  19S 

Manual — 36 


§  1553,  Ch.  73  MAKtTAL  OF  FEDERAL  fEOCEDtTRE.  5C2 

(2)  Where  a  party  sues  as  assignee  in  a  case  in  which  his  as- 
signor could  not  have  maintained  the  action.4 

(3)  In  cases  of  improper  removal  from  a  state  court.5 

(4)  Whenever  the   jurisdiction   of   the   court  below  has  been 
directly  attacked  (under  former  equity  rules,  by  plea  or  demurrer, 
now  by  motion  to  dismiss  or  by  answer.)  9 

But  the  objection  that  a  court  of  equity  has  no  jurisdiction 
because  of  the  presence  of  an  adequate  remedy  at  law  does  not 
constitute  sufficient  grounds  for  certification  of  the  question  of 
jurisdiction  to  the  Supreme  Court.7 

§  1553.  Rules  for  Determining1  the  Respective  Jurisdiction  of 
the  Circuit  Courts  of  Appeal,  and  the  Supreme  Court  Where  the 
Jurisdiction  of  the  Court  is  in  Issue.  Inasmuch  as  only  "the 
question  of  jurisdiction  alone"  may  be  certified  directly  to  the 
Supreme  Court,  under  clause  (1)  of  §  238,  Jud.  Code  (§  1551, 
supra),  we  must  consider  the  effect  of  a  mixture  of  questions  of 
jurisdiction,  and  of  issues  on  the  merits  of  the  case. 

The  Supreme  Court,  in  the  case  of  U.  S.  v.  John,  155  Ui-S.  109, 
39  L.  Ed.  87,  15  Sup.  Ct.  39,  has  laid  down  six  rules,  governing 
the  various  situations  which  arise  in  connection  with  this  situation, 
as  follows: 

"(1)  If  the  jurisdiction  of  the  circuit  court  is  in  issue,  and 
decided  in  favor  of  the  defendant,  as  that  disposes  of  the  case, 

U.  S.  477,  49  I*.  Ed.  1133,  25  Sup.  Ct.  768;  Davis  v.  Cleveland  C.  C.  & 
St.  L.  R.  R.  Co.,  217  U.  S.  157,  54  L.  Ed.  708,  27  L.  B.  A.  (N.  S.)  823,  30 
Sup.  Ct.  463,  156  Fed.  775,  84  C.  C.  A.  453;  St.  Louis  Cotton  Compress  Co. 
v.  American  Cotton  Co.,  60  C.  C.  A.  80,  125  Fed.  196. 

4  Barling  v.  Bank  of  British  N.  A.,  50  Fed.  261,  1  C.  C.  A.  510,  7  U.  S. 
App.  194. 

5  Powers  v.  Chesapeake  &  Ohio  R.  R.  Co.,  169  U.  S.  92,  42  K  Ed.  673,  18 
Sup.  Ct.  264;  Kansas  City  N.  W.  R.  R.  Co.  v.  Zimmerman,  210  U.  S.  336, 
52  L.  Ed.  1084,  28  Sup.  Ct.  730. 

6  Davis  &  Rankin  Bldg.  &  Mfg.  Co.  v.  Barber,  60  Fed.  465,  9  C.  C.  A.  79, 
18  U.   S.   App.   476;   Hennessy   v.   Richardson  Drug  Co.,   189  U.   S.   25,   47 
L.  Ed.  697,  23  Sup.  Ct.  532;  The  Alliance,  70  Fed.  274,  17  C.  C.  A.  124,  44 
U.  S.  App.  52;  Equity  Rule  29. 

7  Kansas  City  N.  W.  R.  R.  Co.  v.  Zimmerman,  210  U.  S.  338,  52  L.  Ed. 
1084,   28   Sup.   Ct.   730;   Louisville   Trust   Co.   v.   Knott,   191   U.   S.   225,   48 
L.  Ed.  159,  24  Sup.  Ct.  119;  Blythe  v.  Hinkley,  173  U.  S.  501,  43  L.  Ed. 
783,  19  Sup.  Ct.  497;  United  States  ex  rel.  Mudsill- Mining  Co.  v.  Swan,  65 
Fed.  647,  13  C.  C.  A.  77,  31  U.  S.  App.  112. 


JURISDICTION  OP  SUPREME  COUET.  Ch.  73,  §  1553 

the  plaintiff  should  have  the  question  certified,  and  take  his  appeal 
or  writ  of  error  directly  to  this  court.  (2)  If  the  question  of 
jurisdiction  is  in  issue,  and  the  jurisdiction  sustained,  and  then 
judgment  or  decree  is  rendered  in  favor  of  the  defendant  on  the 
merits,  the  plaintiff,  wro  has  maintained  the  jurisdiction,  must 
appeal  to  the  circuit  court  of  appeals,  where,  if  the  question  of 
jurisdiction  arises,  the  circuit  court  of  appeals  may  certify  it. 
(3)  If  the  question  of  jurisdiction  is  in  issue,  and  the  jurisdiction 
sustained,  and  the  judgment  on  the  merits  is  rendered  in  favor 
of  the  plaintiff,  then  the  defendant  can  elect  either  to  have  the 
question  certified,  and  come  directly  to  this  court,  or  to  carry  the 
whole  case  to  the  circuit  court  of  appeals,  and  the  question  of 
jurisdiction  can  be  certified  by  that  court.  (4)  If  in  the  case  last 
supposed  the  plaintiff  has  ground  of  complaint  in  respect  of  the 
judgment  he  has  recovered,  he  may  also  carry  the  case  to  the  cir- 
cuit court  of  appeals  on  the  merits,  and  this  he  may  do  by  way 
of  cross  appeal  or  writ  of  error  if  the  defendant  has  taken  the 
case  there,  or  independently  if  the  defendant  has  carried  the  case 
to  this  court  on  the  question  of  jurisdiction  alone,  and  in  this  in- 
stance the  circuit  court  of  appeals  will  suspend  a  decision  upon 
the  merits  until  the  question  of  jurisdiction  has  been  determined. 
(5)  The  same  observations  are  applicable  where  a  plaintiff  objects 
to  the  jurisdiction,  and  is,  or  both  parties  are,  dissatisfied  witli 
the  judgment  on  the  merits.  (6)  In  every  case  in  which  the  com- 
plaining party  has  the  right  or  has  and  exercises  the  option  to 
carry  his  case  to  the  circuit  court  of  appeals  for  review,  that 
court  may  decide  the  question  of  jurisdiction  as  well  as  the  ques- 
tion on  the  merits,  for  the  power  of  that  court  to  certify  the  ques- 
tion of  jurisdiction  to  the  Supreme  Court  assumes  the  power  to 
decide  it."8 

«  See  also  New  Orleans  v.  Benjamin,  153  U.  S.  411,  38  L.  Ed.  764,  14  Sup. 
Ct.  905;  Evans-Snider-Buel  Co.  v.  McCaskill,  101  Fed.  658,  41  C.  C.  A.  577; 
McLish  v.  Roff,  141  U.  S.  661,  35  L.  Ed.  895,  12  Sup.  Ct.  113;  Harris  v. 
Kosenberger,  145  Fed.  449,  13  L.  E.  A.  (N.  S.)  762,  76  C.  C.  A.  22o;  Gates 
v.  Bucki,  53  Fed.  965,  4  C.  C.  A.  116,  12  U.  S.  App.  69;  Carter  v.  Roberta, 
177  U.  S.  500,  44  L.  Ed.  863,  20  Sup.  Ct.  713;  Reliable  Incubator  &  Brooder 
Co.  v.  Stahl,  105  Fed.  667,  44  C.  C.  A.  657;  Northern  P.  R.  Co.  v.  Glaspell, 


§§  1554r-1555,  Ch.  73     MANUAL  OP  FEDERAL  PROCEDURE.  564 

It  is  evident,  then,  that  if  the  jurisdiction  of  the  district  court 
is  put  in  issue  with  other  issues  on  the  merits,  then  an  election 
is  given  to  the  party  desiring  to  appeal..  He  may  have  the  ques- 
tion of  jurisdiction  alone  certified  directly  to  the  Supreme  Court, — 
or  he  may  appeal  the  entire  case  on  the  m9rits,  to  the  circuit  court 
of  appeals,  whereupon  that  court  may  either  determine  the  juris- 
dictional  question  itself,  or  may  certify  it  to  the  Supreme  Court 
for  determination.9 

Whether  the  same  party  may  prosecute  two  appeals  from  the 
same  determination  of  his  suit,  having  the  question  of  jurisdiction 
certified  directly  to  the  Supreme  Court,  while  he  appeals  from  the 
decision  and  the  merits  to  the  circuit  court  of  appeals,  is  doubtful. 
The  circuit  court  of  appeals  has  held 10  that  this  is  permissible,  but 
the  Supreme  Court  has  reached  the  opposite  conclusion.11 

§  1554.  Appeals  from  Final  Sentences  and  Decrees  in  Prize 
Causes.  The  second  clause  of  §238,  Jud.  Code  (§1551,  supra)  ; 
confers  upon  the  Supreme  Court  the  jurisdiction  of  appeals  from 
all  final  decrees  in  prize  causes.  The  amount  in  controversy  is 
immaterial,  and  no  certificate  of  the  district  judge  as  to  the  im- 
portance of  the  particular  case  is  required.12 

- :  %  .•  < 

§  1555.  Cases  Involving  the  Construction  or  Application  of 
the  United  States  Constitution,  Under  the  third  clause  of  §  238, 
Jud.  Code  (§  1551,  supra],  the  district  court  must  have  actually 
construed  or  applied  the  Constitution  to  the  case,  or  must  have 
declined  to  do  so  upon  being  requested  so  to  do.13  The  mere  fact 

49  Fed.  482,  1  C.  C.  A.  327,  4  U.  8.  App.  238';  Robinson  v.  Caldwell,  165 
U.  S.  361,  41  I*.  Ed.  746,  17  Sup.  Ct.  343. 
» Ibid. 

10  Pullman  Palace  Car  Co.  v.  Central  Transportation  Co.,  76  Fed.  402,  22 
C.  C.  A.  246,  39  U.  S.  App.  307. 

11  American  Sugar  Refining  Co.  v.  New  Orleans,  181  U.  S.  277,  45  L.  Ed. 
859,   21  Sup.   Ct.   646.     See   also  Robinson   v.   Caldwell,   165   U.   S.   359,   41 
L.  Ed,  745,   17  Sup.  Ct.  343;   Columbus   Const.  Co.  v.  Crane  Company,  174 
U    S.   601,  43  L.  Ed.   1103,   19   Sup.   Ct.   721;    Union  &   Planters'  Bank   v. 
Memphis,  189  U.  S.  74,  47  L.  Ed.  714,  23  Sup.  Ct.  604. 

12  Paquete  v.  Habana,  175  U.  S.  677,  44  L.  Ed.  320,  20  Sup.  Ct.  290. 

13  Cornell  v.  Green,  163  U.  S.  75,  41  L.  Ed.  76.  16  Sup.  Ct.  969. 


565  JURISDICTION   OF  SUPREME   COURT.      Ch.  73,  §§  1556-1557 

that  the  Constitution  might  have  been  involved,  or  might  have 
been  challenged,  if  it  was  not  actually  so  involved  or  challenged, 
does  not  vest  the  Supreme  Court  with  jurisdiction.14 

The  clause  has  been  held  to  include  a  case  involving  the,  con- 
stitutional power  of  Congress  over  the  navigable  waters  of  the 
United  States ; 15  a  case  involving  the  right  of  citizens  of  a  state 
to  vote  for  congressmen  of  the  United  States;16  a  case  in  which 
the  question  whether  the  complainants  are  engaged  in  Interstate 
Commerce  under  paragraph  3  of  §  8  of  article  I  of  the  Constitu- 
tion is  involved.17 

§  1556.  Constitutionality  of  United  States  Law,  or  Validity 
or  Construction  of  Treaty  Drawn  in  Question.  As  in  cases  in- 
cluded under  the  preceding  clause,  the  questions  must  be  actually 
involved,  and  the  court  must  have  been  required  to  pass  upon 
them  in  reaching  this  decision.18  Allegations  that  the  questions 
were  involved,  if  not  supported  by  the  facts  of  the  case,  do  not 
vest  the  Supreme  Court  with  jurisdiction.19  Questions  of  fact, 
although  the  facts  be  the  outgrowth  of  the  operation  of  a  treaty 
or  statute,  do  not  confer  jurisdiction  upon  the  Supreme  Court, 
as  the  validity  or  construction  of  a  statute  or  treaty,  or  the  consti- 
tutionality of  a  United  States  law,  involves  only  questions  of  law.20 

§  1557.  State  Law  or  Constitution  Claimed  to  Contravene  the 
Constitution  of  the  United  States.  The  general  requirement  and 
propositions  of  law  applicable  to  this  clause  are  similar  to  those 
applicable  to  the  two  preceding  clauses,  and  will  be  discussed 
jointly  with  them  in  the  succeeding  sections. 

14  World's  Columbian  Exposition  v.  United  States,  56  Fed.  654,  6  C.  C.  A. 
58;  Northern  Pacific  B.  R.  Co.  v.  Amato,  144  U.  S.  465,  472,  36  L.  Ed.  596, 
12  Sup.  Ct.  740;  Snow  v.  United  States,  118  U.  S.  346,  30  L.  Ed.  207,  G 
Sup.  Ct.  1059. 

15  Cummings  v.  Chicago,  188  U.  S.  410,  47  L.  Ed.  525,  23  Sup.  Ct.  472. 
is  Wiley  v.  Sinkler,  179  U.  S.  62,  45  L.  Ed.  84,  21  Sup.  Ct.  17. 

ii  Macon  v.  Georgia  Packing  Co.,  60  Fed.  781,  9  C.  C.  A.  262. 

18  Muse  v.  Arlington  Hotel  Company,  168  U.  S.  430,  42  L.  Ed.  531,  18 
Sup.  Ct.  109. 

i9Budzisz  v.  Illinois  Steel  Co.,  170  U.  S.  41,  42  L.  Ed.  941,  18  Sup.  Ct. 
503 

20  In  re  Newman,  79  Fed.  615;  Borgmeyer  v.  Idler.  159  U.  S.  408,  40 
L.  Ed.  199,  16  Sup.  Ct.  34. 


§  1558,  Cll.  73          MANUAL    OF  FEDERAL   PROCEDURE.  566 

"A  state  law"  includes  municipal  ordinances  as  the  acts  of  a 
state  perpetrated  through  its  properly  constituted  instrumentality, 
and  if  the  constitutionality  of  such  ordinances  is  involved  the  case 
comes  within  the  purview  of  this  clause.21  However,  a  state  law 
which  is  void  under  the  state  Constitution,  as  well  as  being  in 
contravention  of  the  Constitution  of  the  United  States,  cannot  raise 
the  question  so  as  to  give  the  Supreme  Court  jurisdiction.22 

§  1558.     Clauses  3,  4,  and  5  of  §  238,  Jud.  Code  (§  1551,  supra). 

The  questions  included  under  the  3d,  4th,  and  5th  clauses  of  §  238, 
Jud.  Code,  relating  to  the  Constitution,  treaties,  and  laws  of  the 
United  States,  are  so  closely  related,  and  partake  so  largely  of  the 
same  nature  that  they  have  been  construed  and  discussed  together 
by  the  courts,  and  many  of  the  rules  and  propositions  of  law  which 
have  been  laid  down  apply  to  them  all. 

The  Supreme  Court  has  said:  "When  our  jurisdiction  is  invoked 
under  §  5  ...  on  the  ground  that  the  case  falls  within  the  fourth, 
fifth,  or  sixth  of  the  classes  of  cases  therein  enumerated,  it  must 
appear  that  a  title,  right,  privilege,  or  immunity  was  claimed  under 
the  Constitution,  and  a  definite  issue  in  respect  to  the  possession 
of  the  right  must  be  distinctly  deducible  from  the  record;  or  that 
the  constitutionality  of  the  particular  law  or  the  validity  or  con- 
struction of  the  particular  treaty  was  necessarily  and  directly 
drawn  in  question;  or  that  the  Constitution  or  law  of  a  state  was 
distinctly  claimed  to  be  in  contravention  of  the  Constitution  of  the 
United  States." 

Where  an  appeal  or  writ  of  error  is  taken  direct  to  the  Supreme 
Court  under  clauses  3,  4,  or  5  of  §  238,  Jud.  Code,  the  Supreme 
Court  acquires  jurisdiction,  not  only  of  the  questions  specified  in 

21  Pike's  Peak  Power  Co.  v.  Colorado  Springs,  105  Fed.  1,  44  C.  C.  A. 
333;  Dawson  v.  Columbia  Ave.  Savings  Fund  etc.  Co.,  102  Fed.  200,  42 
C.  C.  A.  258;  City  R.  R.  Co.  v.  Citizens  St.  R.  R.  Co.,  166  U.  S.  557,  41 
L.  Ed.  1114,  17  Sup.  Ct.  653;  Walla  Walla  v.  Walla  Walla  Water  Co.,  172 
U.  S.  1,  43  L.  £d.  341,  19  Sup.  Ct.  77;  St.  Paul  Gas  Light  Co.  v.  St.  Paul,  181 
U.  S.  142,  45  L.  Ed.  788,  21  Sup.  Ct.  575;  Davis  &  Farnum  Mfg.  Co.  v.  Los 
Angeles,  189  U.  S.  207,  47  L.  Ed.  778,  23  Sup.  Ct.  498;  Owensboro  v.  Owens- 
boro  Water  Works,  115  Fed.  318,  53  C.  C.  A.  146. 

&  Jndianapolis  v.  Central  Trust  Co.,  83  Fed.  529,  27  C.  C.  A.  580. 


567  JURISDICTION  OF  SUPREME  COURT.       Ch.  73,  §§  1559-1560 

that  section,  but  of  all  the  questions  involved  in  the  entire  case. 
This  is  shown  by  the  fact  that  under  §  238,  Jud.  Code,  where  an 
appeal  or  writ  of  error  is  taken  direct  to  the  Supreme  Court  in  a 
case  in  which  the  jurisdiction  of  the  district  court  is  in  issue,  it  is 
specifically  directed  that  the  question  of  jurisdiction  alone  shall 
be  certified  to  the  Supreme  Court;  and  there  is  no  such  limita- 
tion prescribed  in  regard  to  any  of  the  other  cases  in  which  juris- 
diction on  appeal  or  error  is  conferred  by  §  238,  Jud.  Code.23 

Upon  review  under  these  clauses  a  certificate,  as  required  by 
clause  (1)  is  unnecessary,  and  of  no  effect.  The  questions  raised 
under  any  of  the  clauses  of  §  238,  Jud.  Code,  must  be  real,  and 
must  represent  substantial  controversies,  not  only  as  to  the  prin- 
ciples involved,  but  as  to  the  relation  of  the  party  by  whom  they 
are  raised,  to  them.24 

Under  §  238,  Jud.  Code,  only  those  questions  which  the  record 
shows  to  have  been  raised  in  the  lower  court  are  available  to  confer 
jurisdiction  in  the  Supreme  Court,  and  an  assignment  of  errors 
cannot  be  availed  of  to  import  questions  into  a  cause  which  the 
record  does  not  so  show  to  have  been  raised. 

§1559.  Appeal  and  Error — Circuit  Court  of  Appeals  to  Su- 
preme Court.  There  are  three  classes  of  cases  that  may  go  from 
the  circuit  court  of  appeals  to  the  Supreme  Court:  (1)  Where  the 
judgment  of  the  circuit  court  of  appeals  is  not  made  final  and 
the  matter  in  controversy  shall  exceed  $1,000  besides  costs.  §  241, 
Jud.  Code  (Appendix,  post) ;  (2)  On  certiorari  from  the  Supreme 
Court  to  the  circuit  court  of  appeals.  §  240,  Jud.  Code  (Appen- 
dix, post) ;  (3)  And  on  certification  to  the  Supreme  Court  by  the 
circuit  court  of  appeals.  §  239,  Jud.  Code  (Appendix,  post). 

§  1560.  Appellate  Jurisdiction  of  the  Supreme  Court  in  Cases 
from  Court  of  Claims.  By  §  242,  Jud.  Code  (Appendix,  post), 
appeals  from  the  Court  of  Claims  are  allowed  the  United  States 

• 

23Hornor  v.  United  States,  143  U.  S.  570.  36  L.  Ed.  266,  12  Sup.  Ct.  522. 
24  Lampasas  v.  Bell,  180  U.  S.  284,  45  L.  Ed.  527,  21  Sup.  Ct.  368, 


§  1561,  Ch.  73  MANUAL  OF  FEDERAL  PROCEDURE.  568 

and  on  vbehalf  of  plaintiff  where  the  amount  in  controversy  exceeds 
$3,000  or  his  claim  is  forfeited  under  §  172,  Jud.  Code  (Appendix, 
post). 

These  appeals  shall  be  taken  within  ninety  days,  as  provided 
§243,  Jud.  Code  (Appendix,  post). 

§  1561.  Appeal  and  Error  to  Supreme  Court  from  Hawaii, 
Porto  Rico,  Alaska,  Philippine  Islands,  District  of  Columbia  and 
Bankruptcy  Courts.  Hawaii  and  Porto  Rico.  Under  §  246,  Jud. 
Code  (Appendix,  post),  as  amended  §  2,  Act  of  Jan.  28,  1915,  c.  22, 
§  2,  writs  of  error  and  appeals  may  be  prosecuted  from  the  Su- 
preme Courts  of  Hawaii  and  Porto  Rico  the  same  as  from  courts 
of  last  resort  of  a  state  under  §  237,  Jud.  Code  (Appendix,  post), 
and  in  all  other  cases  by  certiorari  where  petition  is  presented 
within  six  months  from  date  of  judgment  or  decree.  Writs  of 
error  and  appeal  may  be  taken  to  circuit  court  of  appeals  where 
amount  involved,  exclusive  of  costs,  exceeds  the  value  of  $5,000. 

Alaska.  Under  §  247,  Jud.  Code  (Appendix,  post),  certain  of 
the  Alaska  district  court  judgments  may  be  reviewed  by  the  Su- 
preme Court  in  the  same  time,  manner  and  under  the  same  regu- 
lations as  from  other  district  courts. 

Philippine  Islands.  Likewise  under  acts  superseding  §  248, 
Jud.  Code  (Appendix,  post),  certain  judgments  of  the  Supreme 
Court  of  the  Philippine  Islands  may  be  reviewed  by  the  Su- 
preme Court  of  the  United  States. 

Territorial  Courts  After  Admission  as  State.  §  249,  Jud.  Code 
(Appendix,  post),  provides  for  review  of  judgments  or  decrees  of 
territorial  courts  after  the  territory  has  been  admitted  as  a  state. 

District  of  Columbia.  Appellate  proceedings  from  the  court  of 
appeals  for  the  District  of  Columbia  are  governed  by  §§  250,  251, 
Jud.  Code  (Appendix,  post). 

Bankruptcy  Courts.  Appellate  jurisdiction  in  "bankruptcy  cases 
is  conferred  on  the  Supreme  Court  by  §  252,  Jud.  Code  (Appendix, 
post). 


569  JURISDICTION  OF  SUPREME  COURT.  Ch.  73,  §  1562 

§1562.  Prohibition,  Mandamus  and  Other  Writs  to  Revise 
and  Correct  Proceedings  in  Lower  Court  and  Preserve  Jurisdic- 
tion. Under  §234,  Jud.  Code  (Appendix,  post),  formerly  §  688, 
Rev.  Stats.,  and  §  262,  Jud.  Code  (Appendix,  post),  formerly 
§  716,  Rev.  Stats.,  the  Supreme  Court  has  power  to  issue  writs  of 
prohibition,  writs  of  mandamus,  writs  of  scire  facias  and  all  other 
writs  necessary  to  the  exercise  of  its  jurisdiction  and  agreeable  to 
the  usages  and  principles  of  law. 

Under  these  provisions  the  Supreme  Court  may  revise  and  cor- 
rect District  Court  decisions  by  mandamus  where  relief  cannot  be 
obtained  by  appeal  or  error.  (In  re  Pollitz,  206  U.  S.  323, 
51  L.  Ed.  1081,  21  Sup.  Ct.  729 ;  Ex  parte  Harding,  219  U.  S.  363, 
37  L.  R.  A.  (N.  S.)  392,  55  L.  Ed.  252,  31  Sup.  Ct.  324.) 

Mandamus  will  lie  to  compel  the  District  Court  to  take  jurisdic- 
tion in  a  proper  case.  (In  re  Pollitz,'  206  U.  S.  323,  51  L.  Ed. 
1081,  27  Sup.  Ct.  729;  Grossmayer,  Petitioner,  177  U.  S.  48,  44 
L.  Ed.  665,  20  Sup.  Ct.  535.) 

So  also  mandamus  has  been  used  to  remand  a  case  improperly 
removed,  if  the  defect  appears  on  the  face  of  the  record.  (In  re 
Winn,  213  U.  S.  458,  53  L.  Ed.  873,  29  Sup.  Ct  515.) 


§  1600,  Oh.  74          MANUAL  OF  FEDERAL  P&OCEDURE.  570 


CHAPTER  74. 

REMOVAL    FROM    STATE    COURT    OF    LAST    RESORT    TO    UNITED 
STATES  SUPREME  COURT  BY  WRIT  OF  ERROR— J  URISDICTION. 

SEC. 

1600.  In   General. 

1601.  Statute   Regulating   Removal   by   Writ   of   Error. 

1602.  Writ  of  Error  or  Certiorari  to  Review  State  Court  Decisions — Time 

for  Taking. 

1603.  What  Judgment  and  Decrees  Reviewable. 

1604.  Classification  of  Cases  Reviewable. 

1605.  Decision  of  State  Court  Involving  the  Validity   of  a  Federal  Treaty, 

Statute,    or    Authority,    Their    Validity    Having    Been    Drawn    in 
Question. 

1606.  Decisions  Involving  the  Validity  of  State  Statutes  Whose  Authority 

Drawn  in  Question  as  Repugnant  to  the  Federal  Constitution,  Laws, 
or  Treaties. 

1607.  Decisions  for  or  Against  Right,  Title,  Privilege,  or  Immunity  Claimed 

Under  United  States  Constitution,  Treaty,  Statute,  Authority,  or  Com- 
mission. 

1608.  General  Propositions  Flowing  from  §  237,  Judicial  Code. 

1609.  Procedure  on  Removal  from  State  Courts  of  Last  Resort. 

§  1600.  In  General.  In  addition  to  the  removal  of  causes  from 
state  to  Federal  courts  as  treated  in  chapter  9,  cases  may  be  re- 
moved to  the  Supreme  Court  of  the  United  States  under  §  237, 
Jud.  Code,  after  they  have  been  finally  decided  by  the  highest 
state  court  having  jurisdiction  of  the  cause. 

The  grounds  of.  removal  under  this  section  are  more  restricted 
than  those  previously  enumerated,  extending  only  to  cases  in  which 
the  decision  of  a  state  court  is  adverse  to  the  Federal  Constitu- 
tion, treaties,  laws,  or  authority,  or  to  a  right,  title,  privilege,  or 
immunity  claimed  thereunder,  the  purpose  of  the  review  by  the 
Supreme  Court  being  to  preclude  any  possibility  of  unconstitu- 
tional legislation  by  state  courts. 

The  procedure  upon  removal  under  this  section  is  identical  with 
that  upon  writ  of  error  to  the  Federal  courts  (§  1656,  post),  except 
that  under  §  999,  Rev.  Stats.  (3  U.  S.  Comp.  Stats.  1916,  §  1659, 
p.  3317),  the  writ  is  allowed  by  a  justice  of  the  Supreme  Court 


571  APPELLATE  REVIEW  STATE  COURT.     Ch.  74,  §  1601 

of  the  United  States  or  by  the  chief  justice,  judge  or  chancellor  of 
the  state  court  and  thirty  days'  notice  must  be  given  the  adverse 
party.. 

§  1601.    Statute  Regulating  Removal  by  Writ  of  Error. 

§  237,  Jud.  Code  (Re-enacting  §  709,  Rev.  Stats.;  amended 
Act  Dec.  23,  1914,  c.  20,  and  Act  Sept.  6,  1916,  c.  448,  §2). 
"A  final  judgment  or  decree  in  any  suit  in  the  highest  court 
of  a  state  in  which  a  decision  in  the  suit  could  be  had,  where 
is  drawn  in  question  the  validity  of  a  treaty  or  statute  of,  or 
an  authority  exercised  under  the  United  States,  and  the 
decision  is  against  their  validity;  or  where  is  drawn  in  ques- 
tion the  validity  of  a  statute  of  or  an  authority  exercised  under 
any  state,  on  the  ground  of  their  being  repugnant  to  the  Con- 
stitution, treaties,  or  laws  of  the  United  States,  and  the  decision 
is  in  favor  of  their  validity,  may  be  re-examined  and  reversed 
or  affirmed  in  the  Supreme  Court  upon  a  writ  of  error.  The 
writ  shall  have  the  same  effect  as  if  the  judgment  or  decree 
complained  of  had  been  rendered  or  passed  in  a  court  of  the 
United  States.  The  Supreme  Court  may  reverse,  modify,  or 
affirm  the  judgments  or  decree  of  such  state  court,  and  may 
in  its  discretion  award  execution  or  remand  the  same  to  the 
court  from  which  it  was  removed  by  the  writ. 

"It  shall  be  competent  for  the  Supreme  Court,  by  certiorari 
or  otherwise,  to  require  that  there  be  certified  to  it  for  review 
and  determination  with  the  same  power  and  authority  and 
with  like  effect  as  if  brought  up  by  writ  of  error,  any  cause 
wherein  a  final  judgment  or  decree  has  been  rendered  or  passed 
by  the  highest  court  of  a  State  in  which  a  decision  could 
be  had,  where  is  drawn  in  question  the  validity  of  a  treaty  or 
statute  of,  or  an  authority  exercised  under  the  United  States, 
and  the  decision  is  in  favor  of  their  validity ;  or  where  is  drawn 
in  question  the  validity  of  a  statute  of,  or  an  authority  ex- 
ercised under  any  State,  on  the  ground  of  their  being  repug- 
nant to  the  Constitution,  treaties,  or  laws  of  the  United  States 
and  the  decision  is  against  their  validity;  or  where  any  title, 
right,  privilege,  or  immunity  is  claimed  under  the  Constitu- 
tion, -or  any  treaty  or  statute  of,  or  commission  held  or  au- 
thority exercised  under  the  United  States,  and  the  decision 
is  either  in  favor  of  or  against  the  title,  right,  privilege,  or 
immunity  especially  set  up  or  claimed,  by  either  party,  under 
such  Constitution,  treaty,  statute,  commission,  or  authority." 
(36  Stats.  1156;  amended  38  Stats.  790,  39  Stats.  726;  5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  723 ;  2  U.  S.  Comp.  Stats.  1916, 


§§  1G02-1603,  Ch.  74    MANUAL  OP  FEDERAL  PROCEDURE.  572 

§  1214,  p.  1580;  Foster's  Federal  Practice,  5th  ed.,  pp.  2436, 
2538;  Simkins'  Federal  Equity  Suit,  3d  ed.,  pp.  41,  746,  154.) 

§  1602.  Writ  of  Error  or  Certiorari  to  Review  State  Court 
Decisions — Time  for  Taking.  This  section  re-enacts  §  709,  Rev. 
Stats.,  the  language  of  that  section  being  unchanged  except  by  the 
amendment  above  quoted. 

A  writ  of  error  or  certiorari  are  the  methods  by  which  the  judg- 
ments or  decrees  of  the  highest  courts  of  the  states  having  juris- 
diction of  the  suits  can  be  reviewed  by  the  United  States  Supreme 
Court,  and  consequently  writs  of  error  or  certiorari  can  only  issue 
to  the  state  courts  in  cases  within  its  purview.1  Stipulation  by 
parties  to  the  cause  cannot  confer  jurisdiction  upon  the  Supreme 
Court.2 

Under  §  6,  Act  Sept.  6,  1916,  c.  448  (2  U.  S.  Comp.  Stats.  1916, 
§  1228a,  p.  1805),  the  writ  of  error  or  certiorari  must  be  sued  out 
within  three  months  of  the  date  of  entry  of  the  judgment  or  decree. 

§  1603.  What  Judgment  and  Decrees  Reviewable.  It  is  only 
"final  judgments  or  decrees3  of  the  highest  court  of  a  state  in 
which  a  decision  of  the  suit  could  be  had,"  that  are  reviewable 
under  this  section.  This  does  not  limit  the  jurisdiction  to  the 
highest  court  of  the  state,  but  only  to  the  highest  court  having 
jurisdiction  of  the  particular  cause  to  be  reviewed.4 

1  Cohens  v.  Virginia,  6   Wheat.  264,  5  L.  Ed.  257;  Verden  v.  Coleman, 
22  How.   (U.  S.)   192,  16  L.  Ed.  336;  Dower  v.  Richards,  151  U.  S.  658,  38 
L.  E\L  305,  14  Sup.  Ct.  452,  17  Mor.  Min.  Rep.  704;  Capitol  Nat.  Bank  v. 
Cadiz  Nat.  Bank,  172  U.  S.  425,  43  L.  Ed.  502,  19  Sup.  Ct.  202. 

2  Mills  v.   Brown,   16  Pet.   525,   10   L.  Ed.   1055. 

SMcKnight  v.  James,  155  U.  S.  687,  39  L.  Ed.  310,  15  Sup.  Ct.  248;  Great 
Western  Tel.  Co.  v.  Burnham,  162  U.  S.  341,  40  L.  Ed.  991,  16  Sup.  Ct.  850. 

*  Sullivan  v.  Texas,  207  U.  S.  416,  52  L.  Ed.  274,  28  Sup.  Ct.  215;  Bacon 
.v.  Texas,  163  U.  S.  207,  41  L.  Ed.  132,  16  Sup.  Ct.  1023;  Fisher  v.  Perkins, 
122  U.  S.  522,  30  L.  Ed.  1192,  7  Sup.  Ct.  1227;  Groat  Western  Tel.  Co.  v. 
Burnham,  162  U.  S.  339,  40  L.  Ed.  991,  16  Sup.  Ct.  850;  Clark  v.  Pennsyl- 
vania, 128  U.  S.  395,  32  L.  Ed.  487,  9  Sup.  Ct.  113;  Gregory  v.  McVeigh,  23 
Wall.  294,  23  L.  Ed.  156;  Stanley  v.  Schwalby,  162  U.  S.  255,  40  L.  Ed. 
960,  16  Sup.  Ct.  754;  Williams  v.  Bruffy,  102  U.  S.  248,  26  L.  Ed.  135; 
Downham  v.  Alexandria,  9  Wall.  659,  19  L.  Ed.  807;  Tinsley  v.  Anderson, 
171  U.  S.  101,  43  L.  Ed.  91,  18  Sup.  Ct.  805;  Pepke  v,  Cronan,  155  U.  S.  100, 
39  L.  Ed.  84,  15  Sup.  Ct.  34;  Newport  Light  Co.  v.  Newport,  151  U.  S. 
527,  38  L.  Ed.  259,  14  Sup.  Ct.  429,  but  see  Olney  v.  Arnold,  3  Dall.  308,  1 
L.  Ed.  614,  as  to  what  is  "highest  court  of  State." 


573  APPELLATE  REVIEW  STATE  COURT.       Ch.  74,  §§  1604-1605 

If,  however,  the  state  court  to  which  the  writ  of  error  is  to  be 
addressed  is  not  the  highest  court  of  the  state,  the  record  must 
affirmatively  show  that  a  decision  of  the  case  could  not  have  been 
had  in  such  court.5  "Any  suit,"  within  the  meaning  of  this  sec- 
tion, has  been  held  to  include  a  proceeding  for  mandamus;6  a  pro- 
ceeding for  a  writ  of  prohibition  to  restrain  a  municipal  corpora- 
tion from  carrying  an  ordinance  into  effect ; 7  but  an  order  made 
by  a  judge  in  chambers,  remanding  a  prisoner  in  habeas  corpus 
proceedings,  is  not  reviewable.8 

§  1604.  Classification  of  Cases  Reviewable.  It  is  to  be  noted 
that  this  section  confers  appellate  jurisdiction  in  three  classes  of 
cases: 

1.  The  decision  of  the  state  court,  in  a  suit  in  which  is  drawn  in 
question  the  validity  of  a  treaty  or  statute  of,  or  an  authority  exer- 
cised under  the  United  States.     (§  1605,  below.) 

2.  The  decision  of  the  state  court,  in  a  suit  in  which  is  drawn  in 
question  the  validity  of  a  statute  or  authority  exercised  under  any 
state,  on  the  ground  of  their  being  repugnant  to  the  Constitution, 
treaties,  or  laws  of  the  United  States.     (§  1606,  below.) 

3.  Where  the  decision  of  the  state  court  is  either  in  favor  of  or 
against  the  title,  right,  privilege,  or  immunity  claimed  under  the 
Constitution  or  any  treaty  or  statute  of,  or  commission  held,  or 
authority  exercised  under  the  United  States.     (§  1607,  below.) 

§  1605.  Decision  of  State  Court  Involving-  the  Validity  of  a 
Federal  Treaty,  Statute,  or  Authority,  Their  Validity  Having 
Been  Drawn  in  Question.  Formerly  the  state  court  must  have 
decided  against  the  validity  of  the  treaty  or  statute ;  otherwise  there 
was  no  right  to  review.9  The  amendment  of  1916  has  changed  this. 

5  Fisher  v.  Perkins,  122  U.  S.  522,  30  L.  Ed.  1192,  7  Sup.  Ct.  1227;  Mullen 
v.  Western  Union  Beef  Co.,  173  U.  S.  116,  43  L.  Ed.  635,  19  Sup.  Ct.  404. 

«McPherson  v.  Blacker,  146  U.  S.  1,  36  L.  Ed.  869,  13  Sup.  Ct.  3;  Hart- 
man  v.  Grecnhow,  102  U.  S.  672,  26  It.  Ed.  271;  American  Exp.  Co.  v. 
Michigan,  177  IT.  S.  404,  44  L.  Ed.  823,  20  Sup.  Ct.  695. 

7  Weston  v.  Charlestown,  2  Pet.  449,  7  L.  Ed.  481. 

SMcKnight  v.  James,  loo  U.  S.  685,  39  L.  Ed.  310,  15  Sup.  Ct.  248.  See 
also  Holmes  v.  Jennison,  14  Pet.  540,  10  I*.  Ed.  579. 


§  1605,  Ch.  74  MANUAL  OF  FEDERAL  PROCEDURE.  574 

The  validity  of  the  statute,  treaty,  or  authority  must  be  "drawn 
in  question"  if  there  is  to  be  a  review  of  the  decision  thereon  by 
writ  of  error.  In  order  to  be  "drawn  in  question,"  within  the 
meaning  of  the  section,  it  is  not  enough  that  rights  claimed  under 
a  treaty  or  statute  are  controverted,  or  that  acts  are  done  which 
dispute  the  authority.10  But  the  validity  of  a  statute  is  "drawn 
in  question"  whenever  the  power  to  enact  it  as  it  is  by  its  terms, 
or  is  made  to  read  by  construction,  is  fairly  open  to  denial  and 
is  denied.11  Authority  exercised  under  the  United  States"  must 
be  real  and  existing, — not  merely  asserted.  "Authority,"  as  used 
in  the  section,  stands  upon  the  same  footing  as  a  treaty  or  statute ; 
and  if  from  the  record  it  appears  that  the  authority  did  not  exist 
or  was  not  in  force,  the  decision  of  the  state  court  will  not  be  re- 
viewed.12 But  the  validity — not  the  exercise  of  the  authority 
merely — must  be  drawn  in  question.13 

And  there  is  a  palpable  difference  between  the  denial  of  the 
validity  of  the  authority  and  a  denial  of  a  title,  privilege,  or  right 

9  Gordon  v.  Caldcleugh,  3  Cranch,  268,  2  L.  Ed.  436;  Mclntire  v.  Wood, 
7  Cranch,  504,  3  L.  Ed.  420;  McClung  v.  Silliman,  6  Wheat.  598,  5  L.  Ed. 
340;  Williams  v.  Norris,  12  Wheat.  117,  6  L.  Ed.  571;  Montgomery  v.  Her- 
nandez, 12  Wheat.  129,  6  L.  Ed.  575;  Menard  v.  Aspasia,  5  Pet.  505,  8 
L.  Ed.  207;  Strader  v.  Baldwin,  9  How.  261,  13  L.  Ed.  130;  Ableman  v. 
Booth,  21  How.  506,  16  L.  Ed.  169;  Reddall  v.  Bryan,  24  How.  420,  16 
L.  Ed.  740;  Eyan  v.  Thomas,  4  Wall.  (U.  S.)  603,  18  L.  Ed.  460;  Baker  v. 
Baldwin,  187  U.  S.  61,  47  L.  Ed.  75,  23  Sup.  Ct.  19. 

lOKennard  v.  Nebraska,  186  U.  S.  304,  46  L.  Ed.  1175,  22  Sup.  Ct.  879; 
Florida  Cent.  B.  Co.  v.  Bell,  176  U.  S.  321,  44  L.'Ed.  486,  20  Sup.  Ct.  399; 
Blackburn  v.  Portland  Gold  Min.  Co.,  175  U.  S.  571,  44  L.  Ed.  276,  20 
Sup.  Ct.  222,  20  Mor.  Min.  Eep.  358;  Telluride  Power  Trans.  Co.  v.  Eio 
Grande  W.  E.  Co.,  175  U.  S.  639,  44  L.  Ed.  305,  20  Sup.  Ct.  245;  Columbia 
Water  Power  Co.  v.  Col.  E.  S.  E.  C.,  172  U.  S.  475,  43  L.  Ed.  521,  19  Sup. 
Ct.  247;  Borgmeyer  v.  Idler,  159  U.  S.  408,  40  L.  Ed.  199,  16  Sup.  Ct.  34; 
Bushnell  v.  Crooke  Min.  etc.  Co.,  148  U.  S.  682,  37  L.  Ed.  610,  13  Sup.  Ct. 
771;  Cook  County  v.  Calumet  &  C.  Canal  etc.  Co.,  138  U.  S.  635,  34  L.  Ed. 
1110,  11  Sup.  Ct.  435;  Ferry  v.  King  County,  141  U.  S.  668,  35  L.  Ed.  895, 
12  Sup.  Ct.  12<8;  Baltimore  Ey.  Co.  v.  Hopkins,  130  U.  S.  210,  32  L.  Ed. 
908,  9  Sup.  Ct.  503. 

11  Baltimore   &   P.   E.   Co.   v.  Hopkins.   130  U:   S.  210,   32   L.   Ed.   908,   9 
Sup.  Ct.  503;  Miller  v.  Cornwall  Ey.  Co.,  168  U.  S.  131,  42  L.  Ed.  409,  18 
Sup.  Ct.  34. 

12  Millingar  v.  Hartupee,  6  Wall.  258,  18  L.  Ed.  829. 

13  Walsti  v.  Columbus  E.  Co.,  176  U.  S.  469,  44  L.  Ed.  548,  20  Sup.  Ct. 
393;  Hamblin  v.  Western  Land  Co.,  147  U.  S.  531,  37  L.  Ed.  267,  13  Sup. 
Ct   353;  New  Orleans  v.  New  Orleans  Water  Works  Co.,  142  U.  S.  79.  35 
L.  Ed.  943,  12  Sup.  Ct.  142;  Millingar  v.  Hartupee,  6  Wall.  258,  18  L.  Ed. 
829. 


575  APPELLATE  REVIEW  STATE  COURT.  Ch.  74.  §  160f> 

or  immunity  claimed  under  it.  A  denial  of  the  latter  does  not 
present  a  federal  question.14  "Authority,"  as  used  in  the  section, 
is  construed  to  mean  personal  authority,  and  not  an  abstract  riirht 
created  under  a  statute.15  Consequently  this  clause  has  been  ap- 
plied in  those  cases  in  which  the  authority  exercised  by  a  public 
officer  of  the  United  States  has  been  called  in  question, — not  where 
a  general  right  is  set  up  under  a  statute.18  Thus,  a  decision 
against  the  validity  of  the  authority  of  the  President  of  the  United 
States  to  approve  a  deed  of  Indian  treaty  lands  is  reviewable 
under  this  clause ; 1T  as  is  the  decision  of  a  state  court  denying  the 
claim  of  a  disbursing  officer  of  the  United  States  that  money  in. 
his  hands  due  United  States  seamen  could  not  be  attached  by 
process  out  of  a  state  court.18  A  refusal  by  a  state  court  to  give 
effect  to  a  judgment  of  a  United  States  court  rendered  upon  the 
point  in  dispute,  with  jurisdiction  of  the  case  and  of  the  parties, 
involves  the  denial  of  the  validity  of  an  authority  exercised  under 
the  United  States,  and  may  be  reviewed  by  the  Supreme  Court.19 
A  judgment  of  the  supreme  court  of  the  District  of  Columbia  is 
subject  to  review  under  this  clause.20 

14  Baltimore  &  P.  R.   Co.  v.  Hopkins,   130  U.  S.  210,  32  L.  Ed.  908,  9 
Sup.    Ct.    503;    Abbott   v.   Tacoma   Bnnk   of   Commerce,   175   U.   S.   409,    44 
L.  Ed.  217,  20  Sup.  Ct.  153;  Cook  County  v.  Calumet  &  C.  Canal  etc.  Co., 
138  U.  S.  636,  34  L.  Ed.  1110,  11  Sup.  Ct.  435;  United  States  v.  Lynch,  137 
U.  S.  280,  34  L.  Ed.  700,  11  Sup.  Ct.  114;  Clough  v.  Curtis,  134  U.  S.  361,  33 
L.  Ed.  945,   10  Sup.   Ct.  573. 

15  Telluride  Power  Transmission  Co.  v.  Rio  Grande  Western  R.  Co.,  175 
U.  S.  639,  44  L.  Ed.  305,  20  Sup.  Ct.  245. 

i«McGuire  v.  Massachusetts,  3  Wall.  387,  18  L.  Ed.  226;  Millingar  v. 
Hartupee,.6  Wall.  (U.  S.)  258,  18  L.  Ed.  829;  Daniels  v.  Tearney,  102  U.  S. 
415,  26  L.  Ed.  187;  Sharpe  v.  Doyle,  102  U.  S.  686,  26  L.  Ed*  277:  Buck 
v.  Colbath,  3  Wall.  334,  18  L.  Ed.  257. 

IT  Pickering  v.  Lomax,  145  U.  S.  310,  36  L.  Ed.  716,  12  Sup.  Ct.  860. 

18  Buchanan  v.  Alexander,  4  How.  20,  11  L.  Ed.  857. 

l»  Mutual  L.  Ins.  Co.  v.  McGrew  (1903),  188  U.  S.  311,  63  L.  E.  A.  33,  47 
L.  Ed.  480,  23  Sup.  Ct.  375;  Hancock  Nat.  Bank  v.  Farnum,  176  U.  S.  640, 
44  L.  Ed.  619,  20  Sup.  Ct.  506;  Dupasseur  v.  Rocheroau,  21  Wall.  130,  22 
L.  Ed.  588;  Pittsburgh  etc.  R.  Co.  v.  Long  Island  L.  &  T.  Co.,  172  U.  S. 
493,  43  L.  Ed.  528,  19  Sup.  Ct.  238;  Central  Nat.  Bank  v.  Rtovena.  171  TJ.  S. 
109,  43  L.  Ed.  97,  18  Sup.  Ct.  837;  Crescent  City  Live  Stock  Co.  v.  Butchor's 
Union  Slaughter  House  Co.,  120  TJ.  S.  141,  30  L.  Ed.  614,  7  Sup.  Ct.  472; 
Palmer  v.  llu>s.-y.  119  U.  S.  9G,  30  I*  T.d.  362,  7  Sup.  Ct.  158. 

20  Embrj  v.  Palmer,  107  U.  S.  3,  27  L.  Ed.  346,  2  Sup.  Ct.  25. 


§  1606,  Ch.  74  MANUAL  OF  FEDERAL  PROCEDURE.  576 

§  1606.  Decisions  Involving  the  Validity  of  State  Statutes 
Whose  Authority  Drawn  in  Question  as  Repugnant  to  the  Federal 
Constitution,  Laws,  or  Treaties.  It  is  only  the  statute  of  a  state 
which  can  be  re-examined  under  this  clause,21  and  a  statute  of  a 
territory  is  not  a  statute  of  a  state,  nor  is  it  an  act  of  Congress,  nor 
a  statute  of  the  United  States,  within  the  meaning  of  this  section, 
and  consequently  the  decision  of  the  state  courts,  that  the  law  of 
a  territory  is  not  repugnant  to  the  Constitution  of  the  United 
States,  is  not  reviewable.22 

In  considering  this  clause,  it  is  necessary,  as  it  was  in  consider- 
ing the  preceding  one,  to  determine  when  the  validity  of  a  treaty, 
statute,  or  authority  is  ' '  drawn  in  question. ' '  In  order  to  give  the 
Supreme  Court  jurisdiction  to  review  a  judgment  rendered  by 
the  highest  court  of  this  state  in  favor  of  the  validity  of  a  statute 
or  an  authority  exercised  under  a  state,  the  validity  of  the  statute 
or  authority  must  have  been  drawn  in  question  upon  the  ground 
of  their  being  repugnant  to  the  Constitution,  laws,  or  treaties  of 
the  United  States.  When  no  such  ground  has  been  presented  to 
or  considered  by  the  courts  of  the  state,  it  cannot  be  said  that  those 
courts  have  disregarded  the  Constitution  of  the  United  States,  and 
the  Supreme  Court  has  no  jurisdiction.23  Whether  or  not  the 
Constitution  of  a  state  is  violated  by  state  law  is  not  within  the 
scope  of  this  clause.24  Nor  is  the  question  of  the  correct  construc- 

21  Scott  v.  Jones,  5  How.  343,  12  L.  Ed.  181. 

22  Messenger   v.   Mason,   10  Wall.  507,   19  L.  Ed.   1028;   Miners'  Bank  v. 
Iowa,  12  How.  1,  13  L.  Ed.  867. 

23Scudder  v.  Coler,  175  U.  S.  32,  44  L.  Ed.  62,  20  Sup.  Ct.  26;  Columbia 
Water  Power  Co.  v.  Columbia  Elec.  Street  E.  R.  Co.,  172  TJ.  S.  475,  43 
L.  Ed.  521,  19  Sup.  Ct.  247  (cases  therein  cited);  Miller  v.  Cornwall  E. 
Co.,  168  U.  S.  131,  42  L.  Ed.  409,  18  Sup.  Ct.  34;  Levy  v.  Superior  Court, 
167  U.  S.  175,  42  L.  Ed.  126,  17  Sup.  Ct.  769;  Adams  v.  Preston,  22  How. 
473,  16  L.  Ed.  273;  Murdock  v.  Memphis,  20  Wall.  (U.  S.)  590,  22  L.  Ed. 
429;  Michigan  Central  E.  R.  Co.  v.  Michigan  Southern  E.  E.  Co.,  19  How. 
378,  15  I*.  Ed.  689. 

24  Calder  v.  Bull,  3  Dall.  386,  1  L.  Ed.  648;  Jackson  Y.  Lamphire,  3  Pet. 
280,  7  L.  Ed.  679;  Withers  v.  Buckley,  20  How.  84,  15  L:- Ed.  816;  Congdon 
&  Tenn.  Mining  Co.  v.  Goodman,  2  Black,  574,  17  L.  Ed.  257;  Solomons  Y. 
Graham,  15  Wall.  208,  21  L.  Ed.  37;  Leeper  v.  Texas,  139  U.  S.  462,  35 
L.  Ed.  225,  11  Sup.  Ct.  577;  Murray  v.  Louisiana,  163  U.  S.  101,  41  L.  Ed. 
87,  16  Sup.  Ct.  990;  East  Hartford  v.  Hartford  Bridge  Co.,  10  How.  511,  13 
L.  Ed.  518;  Baldwin  v.  Kansas,  129  U.  S.  52,  32  L.  Ed.  640,  9  Sup.  Ct.  193; 
Missouri  v.  Harris,  144  U.  S.  210,  36  L.  Ed.  407,  12  Sup.  Ct.  838;  Sage  v. 
Louisiana  Board  of  Liquidation,  144  U.  S.  647,  36  L.  Ed.  577,  12  Sup.  Ct. 
755;  Powell  v.  Brunswick  County  Supervisors,  150  U.  S.  433,  37  L.  Ed. 


577  APPELLATE  REVIEW  STATE  COURT.     Ch.  74,  §  1607 

tion  of  a  state  law,  when  its  validity  is  admitted.25  Formerly  the 
decision  in  the  state  court  must  have  been  in  favor  of  the  validity  of 
the  statute  of  or  the  authority  exercised  under  the  statutes  drawn 
in  question.26  But  the  amendment  of  1916  has  changed  this  so  that 
a  decision  either  for  or  against  is  revicwable.  It  is  not  necessary 
that  the  state  law  be  either  in  the  form  of  a  statute  enacted  by  the 
legislature  of  the  state  or  in  the  form  of  a  Constitution  established 
by  people  of  the  state;  a  by-law  or  ordinance  of  a  municipal  cor- 
poration may  be  such  an  exercise  of  legislative  power  that  it  may 
be  properly  considered  as  a  law  within  the  meaning  of  this  clause 
of  the  section.27 

§1607.  Decisions  for  or  Against  Right,  Title,  Privilege,  or 
Immunity  Claimed  Under  United  States  Constitution,  Treaty, 
Statute,  Authority,  or  Commission.  To  give  the  Supreme  Court 
jurisdiction  in  this  class  of  cases  the  right,  title,  or  immunity 
which  is  denied  by  the  decisions  of  the  state  court  must  grow  out 
of  the  Constitution  or  a  treaty  or  statute  of  the  United  States 
which  has  been  relied  upon.28 

The  title,  right,  privilege,  or  immunity  claimed  under  the  Con- 
stitution or  treaty  or  statute  of  or  commission  held  under  the 
United  States,  with  possibly  some  rare  exceptions,  must  be  spe- 

1134,  14  Sup.  Ct.  166;  In  re  Kemmler,  136  U.  S.  436,  34  L.  Ed.  519,  10 
Sup.  Ct.  930;  McElvaine  v.  Brush,  142  U.  S.  155,  35  L.  Ed.  971,  12  Sup.  Ct. 
156. 

25Congdon  &  Tcnn.  Mining  Co.  v.  Goodman,  2  Black,  574,  17  L.  Ed.  257; 
Scott  v.  Jones,  5  How.  343,  12  L.  Ed.  181;  Lossiuer  v.  Price.  12  How.  59, 
13  L.  Ed.  893;  Commercial  Bank  v.  Buckingham,  5  How.  317,  12  L.  Ed. 
169;  Smith  v.  Hunter,  7  How.  738,  12>  L.  Ed.  894;  Grand  Gulf  R.  Co.  v. 
Marshall,  12  How.  165,  13  L.  Ed.  938;  Ferry  -v.  King  County,  141  U.  8.  668, 
35  L.  Ed.  895,  12  Sup.  Ct.  128;  Snell  v.  Chicago,  152  U.  S.  191,  38  L.  Ed. 
408,  14  Sup.  Ct.  489. 

26McKinney  v.  Carroll,  12  Pet.  66,  9  L.  Ed.  1002;  Commonwealth  Bank 
v.  Griffith,  14  Pet.  56,  10  L.  Ed.  352;  Walker  v.  Taylor,  5  How.  64,  12 
L.  Ed.  52. 

27  Bacon  v.  Texas,  163  U.  S.  207,  41  L.  Ed.  132,  16  Sup.  Ct.  1023;   New 
Orleans  Water  Works  Co.  v.  Louisiana  Sugar  Kenning  Co.,  125  U.  S.  18,  31 
L.  Ed.  607,  8  Sup.  Ct.  741. 

28  Miller  v.  Lancaster  Bank,  106  U.  S.  542,  27  L.  Ed.  289,  1  Sup.  Ct.  536; 
Long  v.  Converse,  91  U.  S.  105,  23  L.  Ed.  233;  Hale  v.  Gainea,  22  How.  160, 
16  L.  Ed.  269;  Wynn  v.  Morris,  20  How.  5,  15  L.  Ed.  800;  Henderson  v. 
Tennessee,  10  How.  323,  13  L.  Ed.  439;  Verden  v.  Coloman,  1  Black,  472,  17 
L.  Ed.  161;  Montgomery  v.  Hernandez,  12  Wheat.  129,  6  L.  Ed.  575. 

Manual — 87 


§  1607,  Ch.  74  MANUAL  OF  FEDERAL  PROCEDURE.  578 

cially  set  up  or  claimed  in  the  court  below  in  order  to  vest  the 
Supreme  Court  with  jurisdiction.29  An  exception  to  this  rule  is 
found  in  a  case  where  the  validity  of  a  treaty  or  statute  of  the 
United  States  is  raised  and  a  decision  is  against  it,  or  where  the 
validity  of  a  state  statute  is  drawn  in  question  and  the  decision 
is  in  favor  of  its  validity.  In  such  cases  the  federal  question  need 
not  be  specifically  set  up  if  it  appears  in  the  record,  was  decided 
and  such  decision  was  necessarily  involved  in  the  case  so  that  it 
could  not  have  been  determined  without  deciding  such  question.30 
Ordinarily,  however,  the  right,  title,  privilege,  or  immunity  re- 
lied upon  must  not  only  be  specially  set  up  or  claimed,  but  it 
must  be  so  claimed  or  set  up  at  the  proper  time  and  in  the  proper 

29  Home  for  Incurables  v.  New  York,  187  U.  S.  155,  63  L.  R.  A.  329, 
47  L.  Ed.  117,  23  Sup.  Ct.  84;  Bolln  v.  Nebraska,  176  U.  S.  83,  44  L.  Ed. 
382,  20  Sup.  Ct.  287;  Telluride  Power  Transmission  Co.  v.  Rio  Grande  West- 
ern' Railway  Co.,  175  U.  S.  639,  44  L.  Ed.  305,  20  Sup.  Ct.  245;   Columbia 
Water  Power  Co.  v.  Columbia  Electric  Street  Railway  Co.,  172  U.  S.  475, 
43  L.  Ed.  521,  19  Sup.  Ct.  247;  Levy  v.  Superior  Court,  167  U.  S.  175,  42 
L.  Ed.  126,  17  Sup.  Ct.  769;  Oxley  Stave  Co.  v.  Butler  Co.,  166  U.  S.  648. 
41  L.  Ed.  1149,  17  Sup.  Ct.  709;   Chicago  etc.  R.  Co.  v.  Chicago,  164  U.  S. 
454,   41  L.  Ed.  511,   17   Sup.   Ct.   129;   Powell  v.  Brunswick  County  Super- 
visors, 150  U.  S.  433,  37  L.  Ed.  1134,  14  Sup.  Ct.  166;  Roby  v.  Colehour,  146 
U.  S.  153,  36  L.  Ed.  .922,  13  Sup.  Ct.  47;  Leeper  v.  Texas,  139  U.  S.  462,  35 
L.  Ed.  225,  11  Sup.  Ct.  577;  Baldwin  v.  Kansas,   129  U.  S.  52,  32  L.  Ed. 
640,  9  Sup.  Ct.   193;  Chappell  v.  Bradshaw,  128  U.  S.   132,  32  L.  Ed.  369, 
9  Sup.  Ct.  40;  French  v.  Hopkins,  124  U.  S.  524,  31  L.  Ed.  536,  8  Sup.  Ct. 
589;   Spies  v.  Illinois,   123   U.   S.   131,  31  L.  Ed.   80,   8   Sup.   Ct.   21;    Arm- 
strong v.  Athens  County,  16  Pet.  281,  10  L.  Ed.  965;  Mississippi  &  Missouri 
R.  Co.  v.  Rock,  4  Wall.  177,  18  L.  Ed.  381. 

30  Miller  v.  Nicholk,  4  Wheat.  311,   4  L.  Ed.   578;    Willson  v.  Blackbird 
Creek  Marsh  Co.,  2  Pet.  245,  7  L.  Ed.  412;  -Satterlee  v.  Mathewson,  2  Pet. 
380,  7  L.  Ed.  458;  Fisher  v.  Cockerell,  5  Pet.  248,  8  L.  Ed.  114;  Crowell  v. 
Randell,  10  Pet.  368,  9  L.  Ed.  458;  Harris  v.  Dennie,  3  Pet.  292,  7  L.  Ed. 
683;  Farney  v.  Towle,  1  Black,  350,  17  L.  Ed.  216;  Hoyt  v.  Sheldon,  1  Black, 
518,  17  L.  Ed.  65;  Mississippi  &  Missouri  etc.  R.  Co.  v.  Rock,  4  Wall.  177, 

18  L.  Ed.  381;  Furman  v.  Nichol,  8  Wall.  44,  19  L.  Ed.  370;  Columbia  Water 
Power  Co.  v.  Columbia  Elec.  St.  R.  R.  Co.,  172  U.  S.  475,  43  L.  Ed.  521, 

19  -Sup.  Ct.  247;  Kaukauna  Water  Power  Co.  v.  Green  Bay  etc.  Canal  Co., 
142  U.  S.  254,  35  L.  Ed.  1004,  12  Sup.  Ct.  173;  Hickie  v.  Starke,  1  Pet.  94, 
7  K  Ed.  67;  Bridge  Proprs.  v.  Hoboken  Land  Co.,  1  Wall.  116,  17  L.  Ed. 
571;  Yazoo  &  M.  V.  R.  Co.  v.  Adams,  180  U.  S.  1,  45  L.  Ed.  395,  21  Sup.  Ct. 
240;  Telluride  Power  Transmission  Co.  v.  Rio  Grande  Western  Railway  Co., 
175  U.  S.  €39,  44  L.  Ed.  305,  20  Sup.  Ct.  245;  Green  Bay  etc.  Canal  Co.  v. 
Patten  Paper  Co.,  172  U.  S.  58,  43  L.  Ed.  364,  19  Sup.  Ct.  97;  Chicago  etc. 
R.  R.  Co.  v.  Chicago,  166  U.  S.  226,  41  L.  Ed.  979,  17  Sup.  Ct.  581;  Sayward 
v.  Denny,  158  U.  S.  180,  39  L.  Ed.  941,  15  Sup.  Ct.  777;  Powell  v.  Brunswick 
County  Supervisors,  150  U.  S.  440,  37  L.  Ed.  1134,  14  Sup.  Ct.  166;  Davis 
v.  Packard,  6  Pet.  41,  8  L.  Ed.  312. 


579  APPELLATE  REVIEW  STATE  COURT.     Ch.  74,  §  1607 

manner.31  The  question  must  be  raised  in  the  state  court  by  the 
individual  who  seeks  to  have  it  reviewed  in  the  Supreme  Court. 
The  fact  that  someone  else  has  raised  it  in  the  state  court  is  of 
no  avail  to  the  appellant  or  plaintiff  in  error,  if  he  himself  fail 
to  raise  it  in  the  court  below.32  Moreover  the  right,  title,  privilege, 
or  immunity  must  be  personal  to  the  appellant  or  plaintiff  in 
error.33  A  state  officer,  testing  the  constitutionality  of  a  state 
law  solely  in  the  interest  of  third  persons,  has  no  standing  to 
review  the  judgment,  even  though  a  judgment  for  costs  was  ren- 
dered against  him  personally.34  "The  proper  time  to  present  the 
question  is  in  the  trial  court  whenever  that  is  required  by  state 
practice  in  accordance  with  which  the  highest  court  of  a  state  will 
not  revise  the  judgment  of  the  court  below  on  questions  not  therein 
raised."86  And  if  it  is  not  presented  before  decision  by  the  court 

31  Mutual  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  292,  63  L.  R.  A.  33,  47  L.  Ed. 
480,  23  Sup.  Ct.  375;  Say  ward  v.  Denney,  158  U.  8.  180,  39  L.  Ed.  941,  15 
Sup.  Ct.  777;  Morrison  v.  Watson,  154  U.  S.  Ill,  38  L.  Ed.  927,  14  Sup.  Ct. 
995;  Miller  v.  Texas,  153  U.  S.  535,  38  L.  Ed.  812,  14  Sup.  Ct.  874;  Maxwell 
v.  Newbold,  18  How.  515,  15  L.  Ed.  508;  Hoyt  v.  Sheldon,  1  Black,  518,  17 
L.  Ed.  65. 

82  De  Lamar's  Nevada  Gold  Mining  Co.  v.  Nesbitt,  177  U.  S.  523,  44 
L.  Ed.  872,  20  Sup.  Ct.  715;  Texas  etc.  R.  Co.  v.  Johnson,  151  U.  S.  81,  38 
L.  Ed.  81,  14  Sup.  Ct.  250;  Missouri  v.  Andriano,  138  U.  S.  496,  34  L.  Ed. 
1012,  11  Sup.  Ct.  385;  Linton  v.  Stanton,  12  How.  423,  13  L.  Ed.  1050; 
Strader  v.  Baldwin,  9  How.  261,  13  L.  Ed.  130;  Manning  v.  French,  133 
U.  8.  186,  33  L.  Ed.  582,  10  Sup.  Ct.  258;  McNulta  v.  Lochridge,  141  U.  S. 
327,  35  L.  Ed.  796,  12  Sup.  Ct.  11;  Kizer  v.  Texarkana  etc.  B.  R.  Co.,  179 
U.  S.  199,  45  L.  Ed.  152,  21  Sup.  Ct.  100;  Conde  v.  York,  168  U.  S.  642,  42 
L.  Ed.  611,  18  Sup.  Ct.  234;  Northern  P.  R.  Co.  v.  Patterson,  154  TJ.  S.  130, 
38  L.  Ed.  934,  14  Sup.  Ct.  977;  Ludeling  v.  Chaffe,  143  U.  S.  301.  36  L.  Ed, 
313,  12  Sup.  Ct.  439;  Giles  v.  Little,  134  U.  S.  645,  33  L.  Ed.  1062,  10  Sup. 
Ct.  623;  Miller  v.  Lancaster  Nat.  Bank,  106  U.  S.  542,.27  L.  Ed.  289,  1  Sup. 
Ct.  536;  Long  v.  Converse,  91  U.  S.  105,  23  L.  Ed.  233;  Owings  v.  Norwood, 
5  Cranch,  344,  3  L.  Ed.  120;  Montgomery  v.  Hernandez,  12  Wheat.  129,  6 
L.  Ed.  575;  Hale  v.  Gaines,  22  How.  144,  16  L.  Ed.  264;  Verden  v.  Coleman, 
1  Black,  472,  17  If.  Ed.  161:  Sully  v.  American  National  Bank,  178  U.  S. 
289,  44  L.  Ed.  1072,  20  Sup.  Ct.  935;  Smith  v.  Indiana,  191  U.  S.  138,  48 
L.  Ed.  125,  24  Sup.  Ct.  51. 

33  Ibid. 

34  Smith  v.  Indiana,  191  U.  S.  138,  48  L.  Ed.  125,  24  Sup.  Ct.  51. 

35  Spies  v.  Illinois,  123  U.  S.  131,  31  L.  Ed.  80,  8  Sup.  Ct.  21;  see  also 
Jaeobi  v.   Alabama,  187   U.  S.  133,  47  L.  Ed.   IOC,  23  Sup.  Ct.  48;   Layton 
v.  Missouri,  187  U.  S.  356,  47  L.  Ed.  214,  23  Sup.  Ct.  137;  Erie  R.  R.  Co. 
v.  Purdy,  185  U.  S.  148,  46  L.  Ed.  847,  22  Sup.  Ct..  605;  Mutual  Life  Ins. 
Co.  v.  McGrew,  188  U.  S.  308,  47  L.  Ed.  480,  23  Sup.  Ct.  375,  63  L.  R.  A. 
33;   Baldwin  T.  Kansas,  129  U.  S.  52,  32  L.  Ed.  640,  9  Sup.  Ct.   193. 


§  1607,  Ch.  74  MANUAL  OF  FEDERAL  PROCEDURE.  580 

of  last  resort  in  the  state,  it  then  becomes  too  late  to  present  it.36 
It  is  not  sufficient,  therefore,  to  make  the  claim  for  the  first  time 
in  the  petition  for  writ  of  error;37  or  in  a  petition  for  rehear- 
ing after 'judgment,38  except  in  a  case  where  the  highest  state  court 
has  entertained  a  petition  for  rehearing,  containing  federal  ques- 
tions, and  has  decided  them.39 

The  proper  manner  in  which  to  raise  the  question  is  by  motion, 
exception,  pleading,  or  any  other  action  which  asserts  the  right, 
title,  privilege  or  immunity  positively  and  unmistakably  upon 

36Bolln  v.  Nebraska,  176  U.  S.  83,  44  L.  Ed.  382,  20  Sup.  Ct.  287;  Citi- 
zens' Sav.  Bank  v.  Owensboro,  173  U.  S.  636,  43  L.  Ed.  840,  19  Sup.  Ct. 
571;  Winona  etc.  Land  Co.  v.  Minnesota,  159  U.  S.  540,  40  L.  Ed.  252,  16 
Sup.  Ct.  88. 

37  Say-ward  v.  Denny,  158  U.  S.  180,  39  L.  Ed.  941,  15  Sup.  Ct.  777;  Morri- 
son v.  Watson,  154  U.  S.  Ill,  38  L.  Ed.  927,   14  Sup.   Ct.   995;   Miller   v. 
Texas,  153  U.  S.  535,  38  L.  Ed.  812,  14  Sup.  Ct.  874;  Duncan  v.  Missouri, 
152  U.  S.  377,  38  L.  Ed.  485,  14  Sup.  Ct.  570;  Powell  v.  Brunswick  County 
Supervisors,  150  U.  S.  433,  37  L,  Ed.  1134,  14  Sup.  Ct.  166;  Schuyler  Nat. 
Bank  v.  Bollong,   150  U.  S.  85,  37  L.  Ed.  1008,  14  Sup.  Ct.  24;  Loeber  v. 
Schroeder,  149  U.  S.  580,  37  L.  Ed.  856,  13  Sup.  Ct.  934;  Brown  y.  Massa- 
chusetts, 144  U.  S.  573,  36  L.  Ed.  546,  12  Sup.  Ct.  757;  Butler  v.  Gage,  138 
U.  S.  52,  34  L.  Ed.  869,  11  Sup.  Ct.  235;  Chappell  v.  Bradshaw,  123  U.  S. 
132,  32  L.  Ed.   369,  9  Sup.  Ct.  40;   Brooks  v.  Missouri,   124  U.  S.  394,   31 
L.  Ed.  454,  8  Sup.  Ct.  443;  Spies  v.  Illinois,  123  U.  S.  131,  31  L.  Ed.  80,  8 
Sup.  Ct.  21. 

38  Johnson  v.  New  York  L.  Ins.  Co.,  187  U.  S.  496,  47  L.  Ed.  273,  23  Sup. 
Ct.  194;  Simmerman  v.  Nebraska,  116  U.  S.  54,  29  L.  Ed.  535,  6  Sup.  Ct. 
333;  Santa  Cruz  County  v.  Santa  Cruz  R.  Co.,  Ill  U.  S.  361,  28  L.  Ed.  456, 
4  Sup.  Ct.  474;  Meyer  v.  Richmond,  172  U.  S.  82,  43  L.  Ed.  374,  19  Sup.  Ct. 
106;  Winona  etc.  R.  Co.  v.  Plainview,  143  U.  S.  371,  36  L.  Ed.  191,  12  Sup. 
Ct.  530;  Worthy  v.  Barrett,  9  Wall.  611,  19  L.  Ed.  565;  Mutual  L.  Ins.  Co. 
v.  MeGrew,  188  U.  S-.  291,  6-3  L.  R.  A.  33,  47  L.  Ed.  480,  23  Sup.  Ct.  375; 
Turner  v.  Richardson,  180  U.  S.  9-2,  45  L.  Ed.  438,  21  Sup.  Ct.  295;  Capital 
Nat.  Bank  v.  Cadiz  First  Nat.  Bank,  172  U.  S.  425,  43  L.  Ed.  502,  19  Sup. 
Ct.  202;  Meyer  v.  Richmond,  172  U.  S.  82,  43  L.  Ed.  374,  19  Sup.  Ct:  106; 
Miller  v.  Cornwall  R.  Co.,  168  U.  S.  131,  42  L.  Ed.  409,  18  Sup.  Ct.  34;  Zadig 
v.  Baldwin,  166  U.  S.  488,  41  L.  Ed.  1087,  17  Sup.  Ct.  639;  Pirn  v.  St.  Lours, 
165  U.  S.  273,  41  L.  Ed.  714,  17  Sup.  Ct.  322;  Sayward  v.  Denny,  158  U.  S. 
180,  39  L.  Ed.  941,  15  Sup.  Ct.  777;  Loeber  v.  Schroeder,  149  U.  S.  580,  37 
L.  Ed.  856,  13  Sup.  Ct.  934;  Bushnell  v.  Crooke  Min.  etc.  Co.,  148  U.  S.  682, 
37  L.  Ed.  610,  13  Sup.  Ct.  771;  Winona  etc.  R.  Co.  v.  Plainview,  143  U.  S. 
371,  36  L.  Ed.   191,  12   Sup.   Ct.  530;   Leeper  v.   Texas,   139   U.   S.   462,   35 
L.  Ed.  225,  11  Sup.  Ct.  577;  Butler  v.  Gage,  138  U.  S.  52,  34  L.  Ed.  869,  11 
Sup.  Ct.  235;  Texas  etc.  R.  Co.  v.  Southern  Pac.  R.  Co.,  137  U.  S.  48,  34 
L.  Ed.  614,  11  Sup.  Ct.  10;   Susquehanna  Boom  Co.  v.  West  Branch  Boom 
Co.,  110  U.  S.  57,  28  L.  Ed.  69,  3  Sup.  Ct.  438. 

39Mallett  v.  North  Carolina,  181  U.  S.  589,  45  L.  Ed.  1015,  21  Sup.  Ct. 
730;  Mutual  Life  Ins,  Co.  v. -McGrew,  188  U.  S.  291,  63  L.  R.  A.  33.  47 
L.  Ed.  480,  23  Sup.  Ct.  375;  Leigh  v.  Green,  193  U.  S.  79,  48  L.  Ed.  623,  21 
Sup.  Ct.  390. 


581  APPELLATE  REVIEW  STATE  COURT.    Ch.  74,  §  1607 

the  record.40  No  particular  form  of  words  or  phrases  has  ever 
been  declared  necessary,  and  all  that  is  required  is  that  the  as- 
sertion of  the  rights  be  brought  clearly  to  the  attention  of  the 
court.41  But  the  fact  that  it  was  so  called  to  the  court's  attention 
and  that  it  was  decided  or  that  its  decision  was  necessary  to  the 
judgment  cr  decree  rendered  in  the  case  must  appear  upon  the 
face  of  the  record42  either  expressly  or  by  necessary  implica- 

40Oxley  Stave  Co.  v.  Butler  County,  166  U.  S.  648,  41  L.  Ed.  1149,  17 
Sup.  Ct.  709;  Mutual  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  291,  63  L.  R.  A. 
33,  47  L.  Ed.  480,  23  Sup.  Ct.  375;  Kipley  v.  Illinois,  170  U.  S.  182,  42 
L.  Ed.  998,  18  Sup.  Ct.  550;  Levy  v.  Superior  Court,  167  U.  S.  175,  177,  42 
L.  Ed.  126,  17  Sup.  Ct.  769;  Dewey  v.  Des  Moines,  173  U.  S.  193,  43  L.  Ed. 
665,  19  Sup.  Ct.  379;  Bolln  v.  Nebraska,  176  U.  S.  83,  44  L.  Ed.  382,  20  Sup. 
Ct.  287;  Winona  etc.  Land  Co.  v.  Minnesota,  159  U.  S.  540,  40  L.  Ed.  252, 
16  Sup.  Ct.  88;  Michigan  Sugar  Co.  v.  Michigan,  185  U.  S.  112,  46  L.  Ed. 
829,  22  Sup.  Ct.  581;  New  York  Central  E.  B.  Co.  v.  New  York,  186  U.  S. 
269,  46  L.  Ed.  1158,  22  Sup.  Ct.  916;  Chapin  v.  Fye,  179  U.  S.  127,  45  L.  Ed. 
119,  21  Sup.  Ct.  71;  De  Lamar's  Nev.  Gold  Mining  Co.  v.  Nesbitt,  177  U.  S. 
523,  44  L.  Ed.  872,  20  Sup.  Ct.  715;  Keokuk  &  H.  Bridge  Co.  v.  Illinois,  175 
U.  S.  626,  44  L.  Ed.  299,  20  Sup.  Ct.  205;  Miller  v.  Cornwall  E.  Co.,  168 
U.  S.  131,  42  L.  Ed.  409,  18  Sup.  Ct.  34;  Porter  v.  Foley,  24  How.  415,  16 
L.  Ed.  740;  Maxwell  v.  Newbold,  18  How.  511,  15  L.  Ed.  506;  Lawler  v. 
Walker,  14  How.  149,  14  L.  Ed.  364;  Hoyt  v.  Sheldon,  1  Black,  518,  17 
L.  Ed.  65;  Edwards  v.  Elliott,  21  Wall.  532,  22  L.  Ed.  487;  Messenger  v. 
Mason,  10  Wall.  507,  19  L.  Ed.  1028;  Erie  B.  E.  Co.  v.  Purdy,  185  U.  S. 
148,  46  L.  Ed.  847,  22  Sup.  Ct.  605. 

41  Green  Bay  etc.  Canal  Co.  v.  Patten  Paper  Co.,  172  U.  S.  58,  43  L.  Ed. 
364,  19  Sup.  Ct.  97;  Carter  v.  Texas,  177  U.  S.  442,  44  L.  Ed.  839,  20  Sup. 
Ct.  687;  Erie  E.  E.  Co.  v.  Purdy,  185  U.  S.  148,  46  L.  Ed.  847,  22  Sup.  Ct. 
605. 

«  Citizens  Sav.  Bank  v.  Owcnsboro,  173  U.  S.  636,  43  L.  Ed.  840,  19 
Sup.  Ct.  530;  Dewey  v.  Des  Moines,  173  U.  S.  193,  43  L.  Ed.  665,  19  Sup. 
Ct.  379;  Capital  Nat.  Bank  v.  Cadiz  First  Nat.  Bank,  172  U.  S.  425,  43 
L.  Ed.  502,  19  Sup.  Ct.  202;  Green"  Bay  etc.  Canal  Co.  v.  Patten  Paper  Co.. 
172  U.  S.  58,  43  L.  Ed.  364,  19  Sup.  Ct.  97;  Kipley  v.'Ulinois,  170  U.  S.  182. 
42  L.  Ed.  998,  18  Sup.  Ct.  550;  Miller  v.  Cornwall  E.  Co.,  168  U.  S.  131, 
42  L.  Ed.  409,  18  Sup.  Ct.  34;  Louisville  etc.  E.  Co.  v.  Louisville,  166  U.  S. 
709,  41  L.  Ed.  1173,  17  Sup.  Ct.  725;  Dibble  vt  Bellingham  Bay  Land  Co., 
163  U.  S.  63,  41  L.  Ed.  72,  16  Sup.  Ct.  939;  Chemical  Nat.  Bank  v.  City 
Bank,  160  U.  S.  646,  40  L.  Ed.  568,  16  Sup.  Ct.  417;  Winona  &  St.  P.  Land 
Co.  v.  Minnesota,  159  U.  S.  540,  40  L.  Ed.  252,  16  Sup.  Ct.  88;  Goodenough 
Horseshoe  Mfg.  Co.  v.  Ehode  I.  Horseshoe  Co.,  154  U.  S.  635,  24  L.  Ed. 
368,  14  Sup.  Ct.  1180;  Gray  v.  Coan,  154  U.  S.  589,  38  L.  Ed.  1088,  14  Sup. 
Ct.  1168;  Morrison  v.  Watson,  154  U.  S.  Ill,  38  L.  Ed.  927,  14  Sup.  Ct.  995; 
Miller  v.  Texas,  153  U.  S.  535,  38  L.  Ed.  812,  14  Sup.  Ct.  874;  Marsh  v. 
Nichols,  140  U.  S.  344,  35  L.  Ed.  413,  11  Sup.  Ct.  798;  Murray  v.  Charles- 
town,  96  U.  S.  432,  24  L.  Ed.  760;  Wolf  v.  Stix,  96  U.  S.  541,  24  L.  Ed.  640; 
Suydam  v.  Williamson,  20  How.  427,  15  L.  Ed.  978;  Christ  Church  v.  Phil. 
Co.,  20  How.  26,  15  L.  Ed.  802;  Carter  v.  Bennett,  15  How.  354,  14  L.  Ed. 
727;  Ocean  Ins.  Co.  v.  Polleys,  13  Pet.  157,  10  L.  Ed.  105;  Crowell  v.  Ean- 
dcll,  10  Pet.  368,  9  L.  Ed.  458;  Davis  v.  Parkard,  7  Pet.  276,  8  L.  Ed.  684; 
Satterlee  v.  Matthewso'n,  2  Pet.  380,  7  L.  Ed.  458;  Miller  v.  Nicholls,  4 


§  1G07,  Ch.  74  MANUAL  OF  FEDERAL  PROCEDURE.  582 

tion.43  In  this  connection,  note  that  a  certificate  of  a  chief  justice 
of  the  highest  court  of  a  state,  that  certain  federal  questions  were 
presented  and  passed  upon,  is  not  a  part  of  the  record,  its  office 
being  merely  to  make  more  certain  that  which  is  too  indefinite  in 
the  record,  and  it  is  insufficient,  in  itself,  to  give  the  Supreme  Court 
jurisdiction.44 

To  authorize  a  review  of  this  class  of  cases  as  of  the  preceding 
classes,  the  decision  formerly  must  have  been  adverse  to  a  title, 
right,  privilege,  or  immunity  claimed  by  the  plaintiff  in  error.45 
The  amendment  of  1916  now  permits  review  of  decisions  in  favor 
of  federal  claims. 

Wheat.  311,  4  L.  Ed.  578;  The  Victory,  6  Wall.  382,  18  L;  Ed.  848;  Say  ward 
v.  Denny,  158  U.  S.  180,  39  L.  Ed.  941,  15  Sup.  Ct.  777;  Choteati  v.  Mar- 
guerite, 12  Pet.  507,  9  L.  Ed.  1174;  Coons  v.  Gallaher,  15  Pet.  18,  10  L.  Ed. 
645;  Commercial  Bank  v.  Buckingham,  5  How.  317,  12  L.  Ed.  169;  Grand 
Gulf  R.  &  Banking  Co.  v.  Marshall,  12  How.  165,  13  L.  Ed.  938;  Maxwell 
v.  Newbold,  18  How.  511,  15  L.  Ed.  506;  Hoyt  v.  Sheldon,  1  Black,  518,  17 
L.  Ed.  65;  Taylor  v.  Morton,  2  Black,  481,  17  L.  Ed.  277;  Gibson  v.  Chou- 
teau,  8  Wall.  314,  19  L.  Ed.  317;  Cockroft  v.  Vose,  14  Wall.  5,  20  L.  Ed. 
875;  Detroit  City  R.  Co.  v.  Guthard,  114  U.  S.  133,  29  L.  Ed.  118,  5  Sup.  Ct. 
811;  Kansas  Endowment  Assn.  v.  Kansas,  120  U.  S.  103,  30  L.  Ed.  593, 
7  Sup.  Ct.  499;  Nauer  v.  Thomas,  13  Allen  (Mass.),  572;  Inglee  v.  Cool- 
idge,  2  Wheat.  363,  4  L.  Ed.  261;  Fisher  v.  Cockerell,  5  Pet.  248,  8  L.  Ed. 
114;  Crawford  v.  Branch  Bank,  7  How.  279,  12  L.  Ed.  700;  Attorney-Gen- 
eral v.  Federal  Street  Meeting  House,  1  Black,  262,  17  L.  Ed.  61;  Parmelee 
v,  Lawrence,  11  Wall.  36,  20  L.  Ed.  48;  Brooks  v.  Missouri,  124  U.  S.  394, 
31  L.  Ed.  454,  8  Sup.  Ct.  443;  Powell  v.  Brunswick  County  Supervisors,  150 
U.  S.  433,  37  L.  Ed.  1134,  14  Sup.  Ct.  166;  Ansbro  v.  United  States,  159 
U.  S.  695,  40  L.  Ed.  310,  16  Sup.  Ct.  187;  Murdock  v.  Memphis,  20  Wall. 
636,  22  L.  Ed.  444;  Ware  v.  Galveston  City  Co.,  Ill  U.  S.  170,  28  L.  Ed. 
393,  4  Sup.  Ct.  337. 

43  Craig   v.    Missouri,   4    Pet.   410,    7   Ji.   Ed.    903;    Powell   v.    Brunswick 
County  Supervisors,  150  U.  S.  433,  37  L.  Ed.  1134,  14  Sup.  Ct.  166;  Sayward 
v.  Denny,  158  U.  S.  180,  39  L.  Ed.  941,  15  Sup.  Ct.  777. 

44  Home  for  Incurables  v.  New  York,  187  U.  S.  155,  63  L.  R.  A.  329,  47 
L.  Ed.  117,  23  Sup.  Ct.  84;  Yazoo  &  M.  V.  R.  R.  Co.  y.  Adams,  180  U.  S. 
41,  45  L.  Ed.  415,  21  Sup.  Ct.  256;  Henkel  v.  Cincinnati,  177  U.  S.  170,  44 
L.  Ed.  720,  20  Sup.  Ct.  573;  Dibble  v.  Bellingham  Bay  Land  Co.,  163  U.  S. 
63,  41  L.  Ed.   72,   16  Sup.   Ct.  939;   Say  ward  v.  Denny,   158  U.  S.   180,  39 
L.  Ed.  941,  15  Sup.  Ct.  777;  Newport  Light  Co.  v.  Newport,  151  U.  S.  527, 
38  L.  Ed.  259,  14  Sup.  Ct.  429;  Powell  v.  Brunswick  County  Supervisors, 
150  U.  S.  433,  37  L.  Ed.  1134,  14  Sup.  Ct.  166;  Roby  v.  Colehour,  146  U.  S. 
153,  36  L.  Ed.  922,  13  Sup.  Ct.  47;  Felix  v.  Scharnweber,  125  U.  S.  54,  31 
L.  Ed.  687,  8  Sup.  Ct.  759;   Caperton  v.  Bowyer,  14  Wall.  216,  20  L.  Ed. 
882;  Lawler  v.  Walker,  14  How.  149,  14  L.  Ed.  364;  Parmelee  v.  Lawrence, 
11  Wall.  36,  20  L.  Ed.  48;  Messenger  v.  Mason,   10  Wall.  507,   19  L.  Ed. 
1028. 

45  De  Lamar's  Nev.  Gold  Min.  Co.  v.  Nesbitt,  177  U.  S.  523,  44  L.  Ed. 
872,  20  Sup.  Ct.  715;  Rae  v.  Homestead  Loan  etc.  Co.,  176  U.  S.  121,  44 
L.  Ed.   398,   20   Sup.  Ct.   341;   Abbott  v.  Taeoma  .Bank  of   Commerce,   175 
U.  S.  409,  44  L,  Ed.  217,  20  Sup.  Ct.   153;  Jersey  City  etc.  Power  Co.   v. 
Morgan,  160  U.  S.  288,  40  L.  Ed.  430,  16  Sup.  Ct.  276;  Sayward  v.  Denny, 


583  APPELLATE  REVIEW  STATE  COURT.          Ch.  74,  §  160S 

§  1608.  General  Propositions  Flowing  from  §  237,  Judicial 
Code.  Having  discussed  each  of  the  three  classes  of  cases  review- 
able  by  writ  of  error  under  §  237,  Judicial  Code,  there  still  remain 
certain  general  rules  or  propositions  applicable  to  the  section  as 
a  whole,  which  are  briefly  as  follows: 

1.  It  is  not  necessary  that  any  particular  amount  of  money  be 
involved  in  order  to  entitle  the  plaintiff  in  error  to  a  review.48 

2.  The  section  applies  alike  to  criminal  and  civil  cases  either 
in  law  or  in  equity.47 

3.  Federal  question  must  be  real,  not  fictitious;  that  is,  there 
must  be  some  ground  for  the  averment  of  the  question.48 

4.  Questions  of  fact  cannot  be  reviewed  by  the  Supreme  Court, 
but  must  be  taken  as  found.49 

5.  "If  it  appears  that  the  judgment  of  the  state  court  was  cor- 
rect, the  jurisdiction  does  not  attach  regardless  of  the  presence 
of  a  federal  question.".80 

158  U.  S.  180,  39  L.  Ed.  941,  15  Sup.  Ct.  777;  Dower  r.  Richards,  151  U.  8. 
658,  38  L.  Ed.  305,  14  Sup.  Ct.  452,  17  Mor.  Min.  Rep.  704;  Tyler  v.  Cass 
Co.,  142  U.  S.  288,  35  L.  Ed.  1016,  12  Sup.  Ct.  225;  Gordon  v.  Caldcleugh, 
3  Crunch,  268,  2  L.  Ed.  436;  Buel  v.  Van  Ness,  8  Wheat.  312,  5  L.  Ed.  624; 
Fulton  v.  McAffee,  16  Pet.  149,  10  L.  Ed.  918;  Ocean  Ins.  Co.  v.  Polleys,  13 
Pet.  157,  10  L.  Ed.  105;  Ross  v.  Doe,  1  Pet.  655,  7  L.  Ed.  302;  Hale  v. 
Gaincs,  22  How.  144,  16  L.  Ed.  264;  Nelson  v.  Moloney,  174  U.  S.  164,  43 
L.  Ed.  934,  19  Sup.  Ct.  622;  Missouri  Pacific  Ry.  Co.  v.  Fitzgerald,  160 
U.  S.  556,  40  L.  Ed.  536,  16  Sup.  Ct.  389. 

46Weston  v.  Charleston,  2  Pet.  449,  7  L.  Ed.  481;  Holmes  v.  Jennison, 
14  Pet.  540,  10  L.  Ed.  579;  The  Paquete  Habana,  175  U.  S.  682,  44  L.  Ed. 
320,  20  Sup.  Ct.  290.  As  to  amount  and  value  as  an  element  of  Supreme 
Court's  appellate  jurisdiction  and  history  of  changes  therein,  see  Kirby  v. 
America  Soda  Fountain  Co.,  194  U.  S.  144,  48  L.  Ed.  911,  24  Sup.  Ct.  619. 

47  Cohens  v.  Virginia,  6  Wheat.  264,  6  L.  Ed.  257;  Verden  v.  Coleman,  22 
How.  192,  16  L.  Ed.  336;  Dower  v.  Richards,  151  U.  S.  658,  38  L.  Ed.  305, 
14  Sup.  Ct.  452,  17  Mor.  Min.  Rep.  704. 

48Hamblin  v.  Western  Land  Co.,  147  U.  S.  531,  37  L.  Ed.  267,  13  Sup. 
Ct.  353.  See  also  Millingar-r.  Hartupee,  6  Wall.  258,  18  L.  Ed.  829;  New 
Orleans  v.  New  Orleans  Water  Works  Co.,  142  U.  S.  79,  35  L.  Ed.  943,  12 
Sup.  Ct.  142;  Wilson  v.  North  Carolina,  169  U.  S.  586,  42  L.  Ed.  8G5,  18 
Sup.  Ct.  435;  St.'  Louis  etc.  R.  Co.  v.  Missouri,  156  U.  S.  478,  39  L.  Ed. 
502,  15  Sup.  Ct.  443. 

4»  Hedrick  v.  Atchison  etc.  R.  Co.,  167  U.  S.  673,  42  L.  Ed.  320,  17  Sup. 
Ct.  922;  Atchison  etc.  R.  Co.  v.  Matthews,  174  U.  S.  96,  43  L.  Ed.  909, 
19  Sup.  Ct.  609;  Backus  v.  Fort  St.  Union  Depot  Co.,  169  U.  S.  557,  42 
L.  Ed.  853,  18  Sup.  Ct.  445;  Egan  v.  Hart,  165  U.  S.  188,  41  L.  Ed.  680, 
17  Sup.  Ct.  300;  In  re  Buchanan,  158  U.  S.  31,  39  L.  Ed.  884,  15  Sup.  Ct. 
723;  Chicago  etc.  R.  Co.  v.  Chicago,  166  U.  S.  226,  41  L.  Ed.  979,  17  Sup 
Ut.  581;  Missouri  etc.  R.  Co.  v.  Haber,  169  U.  a  613,  42  L.  Ed.  878,  18 
Sup.  Ct.  488. 

50  Hammond  v.  Johnston.  1^2  T.  S.  7«.  3."  L.  Ed.  941,  12  Sup.  Ct.  141. 


§  1608,  Ch.  74  MANUAL  OF  FEDERAL  PROCEDURE.  584 

The  Supreme  Court  has  summarized  most  of  the  essential  con- 
ditions necessary  to  its  jurisdiction  to  review  decisions  of  state 
courts  under  this  section,  in  the  early  case  of  Murdock  v.  Memphis, 
20  Wall.  635,  where  Miller,  J.,  says  in  the  opinion: 

"We  hold  the  following  propositions  on  this  subject  as 
flowing  from  the  statute  as  it  now  stands: 

"That  it  is  essential  to  the  jurisdiction  of  this  court  over 
the  judgment  of  a  state  court  that  it  shall  appear  that  one  of 
the  questions  mentioned  in  the  act  (now  §  237,  Judicial  Code) 
must  have  been  raised  and  presented  to  the  state  court. 

"That  it  must  have  been  decided  by  the  state  court,  or  that 
its  decision  was  necessary  to  the  judgment  or  decree  rendered 
in  the  case. 

"That  the  decision  must  have  been  against  the  right,  claimed 
or  asserted  by  the  plaintiff  in  error  under  the  Constitution, 
treaties,  laws,  or  authority  of  the  United  States.  (This  is  now 
changed  by  the  amendment  of  1916.) 

"These  things  appearing,  this  court  has  jurisdiction  and 
must  examine  the  judgment  so  far  as  to  enable  it  to  decide 
whether  this  claim  of  right  was  correctly  adjudicated  by  the 
state  court. 

"If  it  finds  that  it  was  rightly  decided,  the  judgment  must 
be  affirmed. 

"If  it  was  erroneously  decided  against  a  plaintiff  in  error 
(or  appellant)  then  this  court  must  further  inquire  whether 
there  is  any  other  matter  or  issue  adjudged  by  the  state  court, 
which  is  sufficiently  broad  to  maintain  the  judgment  of  that 
court,  notwithstanding  the  error  in  deciding  the  issue  raised 
by  the  Federal  question.  If  this  is  found  to  be  the  case,  the 
judgment  must  be  affirmed  without  inquiring  into  the  sound- 
ness of  the  decision  on  such  other  matter  or  issue. 

"But  if  it  be  found  that  the  issue  raised  by  the  question  of 
Federal  law  is  of  such  controlling  character  that  its  correct 
decision  is  necessary  to  any  final  judgment  in  the  case,  or  that 
there  has  been  no  decision  by  the  state  court  of  any  other 
matter  or  issue  which  is  sufficient  to  maintain  the  judgment 
of  that  court,  without  regard  to  the  Federal  question,  then 
this  court  will  reverse  the  judgment  of  the  state  court,  and 
will  either  render  such  judgment  here  as  the  state  court  should 
have  rendered,  or  remand  the  case  to  that  court  as  the  circum- 
stances of  the  case  may  require." 


585  APPELLATE  REVIEW  STATE  COURT.     Ch.  74,  §  1609 

§  1609.  Procedure  on  Removal  from  State  Courts  of  Last 
Resort. 

§  1003,  Rev.  Stats.  "Writs  of  error  from  the  Supreme 
Court  to  a  state  court  in  cases  authorized  by  law  shall  be 
issued  in  the  same  manner  and  under  the  same  regulations, 
and  shall  have  the  same  effect,  as  if  the  judgment  or  decree 
complained  of  had  been  rendered  or  passed  in  a  court  of  the 
United  States."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  194;  3  U.  S. 
Comp.  Stats.  1916,  §  1662.) 

Thus,  it  is  seen  that  the  procedure  on  removal  of  causes  from 
state  courts  is  identical  with  that  upon  writ  of  error  from  the 
United  States  court,  the  discussion  of  which  is  found  in  chapter 
75. 

From  the  nature  of  the  proceeding,  however,  the  forms  to  be 
used  will  differ  from  those  suggested  there.  The  following  are 
suggested  as  guides : 

PETITION  FOB  WRIT  OF  ERROR. 

To  the  Honorable  Chief  Justice  of  the  Supreme  Court  of  the  United 

States  and  to  the  Associate  Justices  of  the  Court: 

,  the  plaintiff  in  the  above-entitled  cause,  shows  by  this  petition  to 

this  honorable  court,  that  in  the  records,  proceedings  and  decisions  in  the 

court  of  the  state  of  ,  the  same  being  the  highest  court  of  said 

state  in  which  a  decision  could  be  had  in  this  suit,  a  manifest  error  has 
occurred,  greatly  to  the  damage  of  said  .     \ 

That,  as  appears  in  the  record  and  proceedings  there  was  drawn  in  ques- 
tion [here  state  the  federal  question  particularly  involved];  all  of  which 
fully  appears  in  the  records  and  proceedings  of  the  case  and  is  specifically 
set  forth  in  the  assignment  of  errors  filed  herewith. 

Wherefore  petitioner  prays  that  a  writ  of  error  be  allowed,  and  that 
a  transcript  of  record,  proceedings  and  papers  upon  which  said  decree  was 
rendered,  duly  authenticated,  be  ordered  sent  to  the  Supreme  Court  of  the 
United  States  at  Washington,  D.  C.,  under  the  rules  of  such  court  in  such 
cases  made  and  provided,  and  that  the  same  may  be  by  this  honorable 
court  inspected  and  corrected  in  accordance  with  law  and  justice. 

Signed,  ;  Solicitor. 

WRIT  OF  ERROR. 
The  President  of  the  United  States  to  the  Honorable  Judges  of  the  Supreme 

Court  of  the  State  of  ,  Greeting: 

Whereas  in  the  record  and  proceeding  and  in  the  rendition  of  the  judg- 
ment of  the  above-entitled  cause  which  is  now  before  you  or  some  of  you 


§  1609,  Ch.  74          MANUAL  OF  FEDERAL  PROCEDURE.  586 

between  ,  plaintiff,  and  ,  defendant,  your  court  being  the  highest 

court  of  said  state  having  jurisdiction  of  the  cause,  there  was  drawn  in 
question  [here  state  the  federal  question  involved],  and  whereas  there  is 

manifest  error  in  said  decision  to  the  damage  of  ,  the  petitioner  in  error, 

and  whereas  we  are  willing  that  if  there  is  error  it  should  be  duly  corrected, 
we  command  you,  therefore,  if  judgment  be  given  therein,  that  you  send 
under  seal  of  your  court,  the  record  and  proceedings  in  said  cause  to  the 
Supreme  Court  of  the  United  States  together  with  this  writ,  within  such  time 
as  may  be  necessary  in  order  that  you  have  the  same  at  Washington  on  the 

day  o-f ,  19 — ,  that  the  record  may  be  then  inspected  by  the  Supreme 

Court  of  the  United  States  to  be  then  and  there  held  in  order  that  justice 
may  be  done. 

Witness    the    Honorable   ,    Chief    Justice    of    the    Supreme    Court   the 

day  of ,  A.  D.  19 — . 


[Seal]  -  , 

Clerk  of  the  Supreme  Court  of  the  United  States. 

The  allowance  of  the  writ  may  be  indorsed  upon  it  as  follows:  Allowed 
upon  -  giving  bond  in  the  sum  of  -  dollars  according  to  law. 

t 
Justice  of  the  Supreme  Court  of  the  United  States. 

Or  a  separate  order  of  allowance  may  be  made  in  substantially 
the  following  form: 

In  the  Supreme  Court  of  the  United  States  -  Term,  -  ,  19  —  . 
ORDER  OF  ALLOWANCE  OF  WRIT  OF  ERROB. 


C.D. 


On  this  -  day  of  -  ,  19  —  ,  the  application  of  A.  B.,  plaintiff  in  this 
action,  for  a  writ  of  error,  came  on  to  be  heard,  said  plaintiff  being  repre- 
sented by  counsel,  and  it  appearing  to  the  court  from  the  petition  filed 
herein  and  from  the  record  filed  therewith  that  his  application  should  be 
granted,  and  that  a  transcript  of  the  record  proceedings  and  papers,  upon 
which  the  judgment  of  the  court  was  rendered  properly  certified,  should  be 
sent  to  the  Supreme  Court  of  the  United  States,  as  prayed,  in  order  that 
such  proceedings  may  be  had  as  may  be  just. 

Now,  therefore  it  is  ordered  that  the  writ  of  error  be  allowed  upon  bond 
being  furnished  by  the  plaintiff  conditioned  according  to  law  in  the  sum 
of  $  -  [if  it  is  desired  that  this  act  as  a  supersedeas,  insert  that  provision 
here],  and  that  a  true  copy  of  the  record,  assignment  of  errors  and  all 
proceedings  in  the  case  in  the  -  court  of  -  shall  be  transmitted  to 
the  Supreme  Court  of  the  United  States,  duly  certified  according  to  law, 
in  order  that  said  court  may  inspect  the  same  and  take  such  action  thereon 
as  it  deems  proper  according  to  law. 


587  APPELLATE  REVIEW  STATE  COURT.     Ch.  74,  §  1609 

For  the  bond,  citation,  assignment  of  errors,  and  other  papers, 
the  forms  given  in  chapter  75  may  be  used,  the  proper  title  of 
court  and  judge  or  justice  being  inserted. 

The  procedure  on  certiorari  is  the  same  as  from  the  Circuit  Court 
of  Appeals  to  the  Supreme  Court.  Instructions  for  certiorari  pro- 
ceedings by  the  clerk  of  the  Supreme  Court  appear  in  our  Appen- 
dix immediately  before  the  Supreme  Court  Rules. 


Ch.  75  MANUAL  OF  FEDERAL  PROCEDURE.  588 


CHAPTER  75. 

APPEAL  AND  ERROR. 
SEO. 

1650.  In  General. 

1651.  Parties. 

1652.  Time  for  Writs  of  Error  or  Appeals  from  District  Courts  to  the  Su- 

preme Court  of  the  United  States. 

1653.  Time  for  Writs  of  Error  or  Appeals  to  Circuit  Courts  of  Appeals. 

1654.  Time  for  Appeals  to  Circuit  Courts  of  Appeals  from  Interlocutory 

Orders. 

1655.  Time  for  Writs  of  Error  or  Appeals  from  Circuit  Courts  of  Appeals 

to  Supreme  Court. 

1656.  Time  to  Secure  Eeview  of  State  Court  Decisions. 

1657.  Procedure    on   Writs    of    Error    and   Appeals   to    Circuit    Courts    of 

Appeals  the  Same  as  to  Supreme  Court. 

1658.  Allowance  of  Writs  of  Error  or  Appeals. 

1659.  Amendment  of  Writ  of  Error. 

1660.  Writ  of  Error— By  Whom  Issued. 

1661.  Assignment  of  Errors  on  Writ  of  Error. 

1662.  Form  of  Assignment  of  Errors. 

1663.  Citation. 

1664.  Bond. 

1665.  No  Bond  Required  of  United  State*. 
1€66.  Supersedeas. 

1667.  Injunction  Pending  Appeal. 

1668.  Proceedings  in  Forma  Pauperis. 

1669.  Record  on  Error. 

1669a.  Transcript  on  Appeal  and  Error. 

1670.  Reduction  and  Preparation  of  Record  on  Appeal  and  Error  to  Su- 

preme Court. 

1671.  Reduction  and  Preparation  of  Record  Under  New  Equity  Rules. 

1672.  Printing  and  Filing  of  Record  on  Appeal  and  Error  to  Circuit  Courts 

of  Appeals. 

1673.  Printing   and  Filing  of  Record   on   Appeal   and   Error  to  Supreme 

Court — Use    of   Record  in   Circuit    Court   of   Appeals   as   Part   of 
Transcript. 

1674.  One  Record  Sufficient  When  Both  Parties  Appeal  to  Supreme  Court 

Direct. 

1675.  Time  for  Return  of  Appeals  and  Writs  of  Error. 

1676.  Summary  of  Procedure  on  Appeal  and  Error. 

1677.  Review    of    Final    Decisions    of    Circuit    Courts    of    Appeals    npon 

Certiorari. 


589  APPEAL  AND  ERROR.  Ch.  75,  §  1650 

SEC. 

1678.  Certification  by  Circuit  Courts  of  Appeals  to  Supreme  Court. 

1679.  Appellate    Procedure  —  District   Courts    of    Alaska   to    the    Supreme 

Court. 

1680.  Appellate  Procedure — Hawaii  and  Porto  Rico. 

1681.  Appellate  Procedure — From  Supreme  Court  of  Philippines. 

1682.  Appellate  Procedure — From  District  of  Columbia. 

1683.  Appellate  Procedure — From  District  of  Columbia  Where  Decision  of 

Circuit   Court    of    Appeals   is    Otherwise    Final. 

1684.  Certiorari  Ninth   Circuit  to   Supreme   Court   in   Alaska   Cases. 

1685.  Procedure  After  Transcript  Reaches  Appellate  Court. 

1686.  No  Reversal  for  Error  in  Fact. 

1687.  Damages  and  Costs  on  Error. 

1688.  Dismissal    of    Appeal. 

1689.  Diminution  of  Record. 

1690.  Mandate. 

1691.  Death  of  Party  After  Judgment,  but  Before  Appeal. 

1692.  Death  of  Party  During  Appellate  Proceedings. 

1693.  Mistake  as  to  Proper  Method  of  Review  not  Ground   for   Dismissal. 

§  1650.     In  General.     A  judgment  at  law  is  carried  up  for  re-  v 
view,  not  by  appeal,  but  by  writ  of  error.     (Porter  v.  F.  M.  Davies 
&  Co.  (8th  Cir.),  223  Fed.  465,  466,  140  C.  C.  A.  11;  Clark  v.  Belt 
(8th  Cir.),  223  Fed.  573,  579,  138  C.  C.  A.  1.) 

The  term  "appeal"  is  reserved  exclusively  for  the  designation  of 
proceedings  for  the  review  of  equity  cases;  this  phraseology  is 
closely  adhered  to  by  the  federal  courts,  and  an  error  of  law  cannot 
be  considered  under  an  appeal, — nor  can  an  equity  suit  be  reviewed 
by  writ  of  error.  (Stevens  v.  Clark,  62  Fed.  321,  10  C.  C.  A.  379 ; 
Highland  Boy  Gold  Mining  Co.  v.  Strickley,  116  Fed.  852,  54 
C.  C.  A.  186 ;  Francisco  v.  Chicago  &  A.  R.  R.  Co.,  149  Fed.  359,  9 
Ann.  Cas.  628,  79  C.  C.  A.  292;  Ghost  v.  United  States,  168  Fed. 
843,  94  C.  C.  A.  253 ;  Missouri  Pac.  R.  R.  Co.  v.  Chicago  &  A.  R.  R! 
Co.,  132  U.  S.  191,  33  L.  Ed.  309,  10  Sup.  Ct.  65.) 

The  principal  distinction  between  the  two  methods  of  review 
lies  in  scope  of  the  examination  of  the  appellate  court.  Only 
questions  of  law  can  be  considered  upon  a  writ  of  error,  while  an 
appeal  carries  up  the  entire  cause,  both  as  to  law  and  fact,  for 
reconsideration. 

Writs  of  error,  together  with  all  other  preliminary  proceedings 
upon  review,  either  in  law  or  equity,  are  regulated,  not  by  state 


§  1650,  Ch.  75        MANUAL  OP  FEDERAL  PROCEDURE.  590 

laws,  for  the  conformity  act  has  no  application  to  them,  Tmt  by 
federal  statutes  or  rules,  or,  in  their  absence,  by  the  common  law 
in  case  of  a  review  of  a  law  question  and  by  the  English  chancery 
practice  in  reviews  of  equity  cases. 

In  fact,  the  statutes  governing  procedure  upon  writs  of  error 
are,  with  a  very  few  exceptions,  identical  with  those  governing 
appeals,  and  the  procedure  is  applicable  to  and,  as  a  rule,  governs, 
writs  of  error  as  well  as  appeals. 

There  are  four  general  classes  of  cases  in  appellate  proceedings : 

1.  United  States  district  courts  to  the  United  States  Supreme 
Court. 

2.  United  States  district  courts  to  circuit  courts  of  appeals. 

3.  Circuit  courts  of  appeals  to  Supreme  Court. 

4.  State  courts  to  United  States  Supreme  Court. 

In  addition  to  these  four  classes  of  cases,  there  is  provided  a 
method  of  review  by  the  Supreme  Court  in  cases  where  the  decision 
of  the  circuit  courts  of  appeals  is  otherwise  final  (infra,  chapter 
73),  by  certiorari  or  by  certification  of  questions  of  law  from  the 
circuit  court  of  appeals  to  the  Supreme  Court. 

Procedure  in  all  four  of  those  general  classes  is  identical,  except 
as  to  the  time  within  which  the  appeal  must  be  sued  out,  and  as 
to  differences  in  practice  due  to  variations  in  the  various  rules  of 
different  circuits,  which  should  always  be  examined  by  the  prac- 
titioner. These  rules  will  be  found  in  the  Appendix,  where  the 
corresponding  rules  of  each  circuit  are  grouped  together,  and  where 
circuit  courts  of  appeals  rules  are  designated  by  number  in  this 
chapter,  the  compilation  in  the  Appendix  is  referred  to. 

Consequently  all  appellate  proceedings  are  herein  treated  col- 
lectively, except  as  to  time,  while  proceedings  upon  certiorari  or 
certification  of  questions  of  law,  are  separately  treated. 

Procedure  in  the  appellate  court  from  courts  of  Hawaii,  Porto 
Rico,  Alaska,  Philippines  and  District  of  Columbia,  falls  within 
one  of  the  four  classes  enumerated  as  indicated. 

Procedure  in  the  appellate  court,  after  the  transcript  has  been 
properly  filed  therein,  dismissal  of  appeals,  writ  of  mandate,  and 


591  APPEAL  AND  ERROR.          Ch.  75,  §  1651 

effect  of  death  on  appeals,  are  separately  treated  in  the  latter  part 
of  this  chapter. 

§  1651.  Parties.  In  case  of  a  joint  judgment  or  decree,  all 
parties  who  are  affected  by  it  must  join  in  the  application  for 
appeal  or  a  writ  of  error,  unless  some  of  them,  upon  being  notified 
by  those  of  their  codefendants  who  desire  to  sue  out  the  writ  or 
appeal  of  their  intention  so  to  do,  refuse  to  join;  in  which  case 
the  party  or  parties  desiring  are  entitled  to,  without  such  joinder, 
upon  motion  stating  the  facts.  But  the  notice  and  consequent 
order  permitting  the  severance  of  the  parties  must  be  incorporated 
in  the  record.  (Hardee  v.  Wilson,  146  U.  S.  180,  36  L.  Ed.  933, 
13  Sup.  Ct.  39 ;  Godbe  v.  Tootle,  154  U.  S.  577,  19  L.  Ed.  831,  14 
Sup.  Ct.  1167;  Estis  v.  Trabue,  128  U.  S.  229,  32  L.  Ed.  437,  9  Sup. 
Ct.  58;  Humes  v.  Third  Nat.  Bank,  54  Fed.  917,  4  C.  C.  A.  668.) 

This  notice  and  refusal  and  the  order  allowing  the  writ  upon 
motion  showing  these  facts,  is  known  as  "Summons  and  Sever- 
ance," and  is  essential  to  the  jurisdiction  of  the  appellate  court. 
But  notice  in  open  court  at  the  time  when  the  judgment  is  ren- 
dered, the  writ  being  allowed  at  that  time  upon  motion,  or  appeal 
taken  if  shown  by  the  record,  amounts  to  summons  and  severance, 
and  no  written  notice  is  then  required.  *(Lamon  v.  Speer  Hard- 
ware Co.,  190  Fed.  734,  111  C.  C.  A.  462 ;  Alsop  v.  Conway,  188 
Fed.  572,  110  C.  C.  A.  366 ;  Ireton  v.  Pennsylvania  Co.,  185  Fed. 
84,  107  C.  C.  A.  304;  Love  v.  Export  Storage  Co.,  143  Fed.  1, 
74  C.  C.  A.  155 ;  Loveless  v.  Ransom,  107  Fed.  627,  46  C.  C.  A.  515 ; 
McNulta  v.  West  Chicago  Park,  99  Fed,  328,  39  C.  C.  A.  545.) 

Failure  to  join  all  interested  parties  without  having  obtained 
a  severance  is  fatal  to  the  jurisdiction  of  the  appellate  court,  and 
the  motion  for  severance  must  be  incorporated  in  the  record  in 
order  to  vest  that  court  with  jurisdiction.  This  matter  may  be 
raised  at  any  time  before  final  disposition  of  the  appeal.  (Love- 
less v.  Ransom,  107  Fed.  627,  46  C.  C.  A.  515.) 

It  is  said  in  the  case  ,of  Hardee  v.  Wilson,  146  U.  S.  179,  36 
L.  Ed.  933,  13  Sup.  Ct.  39,  that  there  are  two  reasons  for  the  rule : 


§  1651,  Ch.  75  MANUAL  OP  FEDERAL  PROCEDURE.  592 

(1)  That  the  successful  parties  may  be  at  liberty  to  proceed  in 
the  enforcement  of  his  judgment  or  decree  against  the  parties  who 
do  not  desire  to  have  it  reviewed;  (2)  that  the  appellate  tribunal 
shall  not  be  required  to  decide  a  second  or  third  time  the  same 
question  on  the  same  record. 

An  exception  to  this  rule  exists  in  a  case  where  one  of  several 
defendants  affected  by  a  joint  decree  takes  his  appeal  in  open 
court  when  the  decree  is  entered.  (Detroit  v.  Guarantee  Trust 
Co.,  168  Fed.  611,  93  C.  C.  A.  604.) 

Inasmuch  as  all  parties  are  then  deemed  present  in  court,  the 
allowance  of  the  appeal  under  these  conditions  takes  the  place  of 
summons  and  severance,  and  if  citation  issues,  or  if  other  notice 
is  given,  it  is  considered  superfluous,  any  defects  being  immaterial. 
(Swift  &  Co.  v.  Kortrecht,  110  Fed.  328,  49  C.  C.  A.  68.) 

Ordinarily  only  a  party  to  the  suit  is  entitled  to  appeal  (Ex 
parte  Cockeroft,  104  U.  S.  578,  26  L.  Ed.  856 ;  In  re  Woerishoff er, 
74  Fed.  916,  21  C.  C.  A.  175,  and  cases  cited). 

But  there  are  cases  in  which  the  interest  of  persons  not  made 
parties  to  the  original  suit  are  so  affected  by  the  decree  that  they 
are  entitled  to  a  review.  (Davis  v.  Mercantile  Trust  Co.,  152 
U.  S.  594,  38  L.  Ed.  563, 14  Sup.  Ct.  693.) 

When  this  is  the  case,'  the  interest  of  such  persons  must  clearly 
appear  as  well  as  the  manner  in  which  such  interest  is  affected 
by  the  decree  complained  of,  which  should  probably  be  done  by 
a  sworn  petition  for  appeal,  setting  up  those  facts  and  petitioning 
for  an  order  of  intervention  allowing  them  to  become  parties  for 
the  purposes  of  appeal.  (Aiken  v.  Smith,  54  Fed.  896,  4  C.  C.  A. 
654.) 

Such  intervention,  however,  rests  within  the  discretion  of  the 
court,  and  if  the  petition  is  refused  mandamus  will  not  lie.  (In  re 
Columbia  Leal  Estate  Co.,  112  Fed.  645,  50  C.  C.  A.  406.) 

An  example  of  a  case  in  which  an  appeal  may  be  allowed  on 
behalf  of  one  not  a  party  to  the  original  proceeding  is  found  in 
the  case  of  an  appeal  by  a  receiver  in  a  foreclosure  suit  who  is 
not  a  party  to  the  original  suit.  (Hovey  v.  McDonald,  109  U.  S. 
155,  27  L.  Ed.  889;  3  Sup-.  Ct.  136.) 


593  APPEAL  AND  ERROR.     Ch.  75,  §§  1652-1653 

Another  illustration  is  the  case  of  a  purchaser  of  property  at 
a  foreclosure  sale.  (Davis  v.  Mercantile  Trust  Co.,  152  U.  S.  594, 
38  L.  Ed.  563,  14  Sup.  Ot.  693.) 

Where  a  corporation  is  a  party  to  a  suit,  an  appeal  may  be 
prosecuted  in  the  corporate  name,  but  if  the  appellant  is  a  part- 
nership, the  appeal  may  not  be  taken  in  the  firm  name,  but  must 
be  prosecuted  in  the  name  of  the  individual  partners,  each  of  whom 
must  personally  sign  the  appeal  bond.  (Estis  v.  Trabue,  128  U.  S. 
225,  32  L.  Ed.  437,  9  Sup.  Ct.  58.) 

The  rule  that  all  parties  must  be  joined  in  an  appeal  applies 
to  appellees  as  well  as  to  appellants,  but  where  several  appellees 
are  representatives  of  a  class,  "citation  need  be  served  only  upon 
a  few  of  each  class  who  should  appear  in  good  faith  in  defense 
of  the  interest  of  that  class."  (Kidder  v.  Fidelity  Ins.  Trust  & 
Safe  Deposit  Co.,  105  Fed.  821,  44  C.  C.  A.  593.) 

§1652.  Time  for  Writs  of  Error  or  Appeals  from  District 
Courts  to  the  Supreme  Court  of  the  United  States.  The  act  of 
Sept.  6,  1916,  c.  448,  §6  (quoted  §  1655,  below),  provides  that  no 
writ  of  error,  appeal  or  writ  of  certiorari  intended  to  bring  up  a 
,  case  for  review  by  the  Supreme  Court  shall  be  allowed  unless  ap- 
plied for  within  three  months  after  the  entry  of  the  judgment  or 
decree  complained  of.  Certiorari  to  the  Philippines  may  be  in  six 
months. 

§  1653.  Time  for  Writs  of  Error  or  Appeals  to  Circuit  Courts 
of  Appeals.  Those  sections  of  the  Judicial  Code  relating  to  cir- 
cuit courts  of  appeals  are  largely  re-enactments  of  the  act  of  March 
3,  1891.  However,  section  11  of  that  act  prescribing  the  time, 
procedure  and  method  of  appeal  has  not  been  re-enacted  (except 
as  to  the  concluding  sentence  thereof,  which  now  constitutes  sec- 
tion 132,  Judicial  Code),  but  still  remains  in  force. 

That  part  of  the  act  relating  to  the  time  within  which  appeals 
and  writs  of  error  must  be  taken  is  as  follows: 

Manual—  88 


§§  1654^1655,  Ch.  75    MANUAL  OP  FEDERAL  PROCEDURE.  594 

Part  §  11,  Act  March  3,  1891.  "No  appeal  or  writ  of  error 
by  which  any  order,  judgment,  or  decree  may  be  reviewed  in 
the  circuit  court  of  appeals  under  the  provisions  of  this  act 
shall  be  taken  or  sued  out  except  within  six  months  after  the 
entry  of  the  order,  judgment,  or  decree  sought  to  be  reviewed : 
Provided,  however,  That  in  all  cases  in  which  a  lesser  time  is 
now  by  law  limited  for  appeals  or  writs  of  error,  such  limits 
of  time  shall  apply  to  appeal  or  writs  of  error  in  such  cases 
taken  to  or  sued  out  from  the  circuit  courts  of  appeals."  (6 
Fed.  Stats.  Ann.,  2d  ed.,  p.  161 ;  3  U.  S.  Comp.  Stats.  1916, 
§  1647.) 

§  1654.  Time  for  Appeals  to  Circuit  Courts  of  Appeals  from 
Interlocutory  Orders. 

Part §129,  Jitd.  Code.  "The  appeal  .  .  .  (from  an  inter- 
locutory order  or  decree,  granting,  continuing,  refusing,  dis- 
solving, or  refusing  to  dissolve  an  injunction,  or  appointing  a 
receiver  ,^-to  the  circuit  court  of  appeals)  must  be  taken  within 
thirty  days  from  the  entry  of  such  order  or  decree."  (36 
Stats.  1134;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  629;  2  U.  S.  Comp. 
Stats.  1916,  §  1121;  Foster's  Federal  Practice,  5th  ed.,  pp.  930, 
1943,  2411,  2436;  Simkins'  Federal  Equity  Suit,  3d  ed. 
pp.  626,  627,  628,  629.) 

§  1655.  Time  for  Writs  of  Error  or  Appeals  from  Circuit 
Courts  of  Appeals  to  Supreme  Court.  Writs  of  error  or  appeals 
in  the  third  class  of  cases  above  enumerated  must  be  taken  within 
three  months. 

§  6,  Act  Sept.  6,  1916,  c.  448.  Time  for  application  for 
writ  of  error,  appeal,  or  certiorari.  "No  writ  of  error,  appeal, 
or  writ  of  certiorari  intended  to  bring  up  any  cause  for  review 
by  the  Supreme  Court  shall  be  allowed  or  entertained  unless 
duly  applied  for  within  three  months  after  entry  of  the  judg- 
ment or  decree  complained  of:  Provided,  That  writs  of  cer- 
tiorari addressed  to  the  Supreme  Court  of  the  Philippine 
Islands  may  be  granted  if  application  therefor  be  made  within 
six  months."  (39  Stats.,  p.  -  -,  6  Fed.  Stats.  Ann.,  2d  edv 
p.  158,  in  note  to  §  1008,  Rev.  Stats. ;  2  U.  S.  Comp.  Stats.  1916, 
§  1228a,  p.  1805.) 


595  APPEAL  AND  ERROR.     Ch.  75,  §§  1656-1658 

§  1656.    Time  to  Secure  Review  of  State  Court  Decisions. 

§  1003,  Rev.  Stats.  "Writs  of  error  from  the  Supreme 
Court  to  a  state  court,  in  cases  authorized  by  law,  shall  be 
issued  in  the  same  manner  and  under  the  same  regulations, 
and  shall  have  the  same  effect,  as  if  the  judgment  or  decree 
complained  of  had  been  rendered  or  passed  in  a  court  of  the 
United  States."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  194;  3  U.  S. 
Comp.  Stats.  1916,  §  1662.) 

The  writ  of  error  must  therefore  be  allowed  within  three  months 
after  the  entry  of  judgment  or  decree,  as  provided  by  §  6,  Act  Sept. 
6,  1916,  c.  448  (quoted  §  1655,  supra). 

§  1657.  Procedure  on  Writs  of  Error  and  Appeals  to  Circuit 
Courts  of  Appeals  the  Same  as  to  Supreme  Court. 

Part  §11,  Act  March  3,  1891,  c.  517.  "All  provisions  of 
law  now  in  force  regulating  the  methods  and  system  of  review 
through  appeals  and  writs  of  error  shall  regulate  the  methods 
and  systems  of  appeals  and  writs  of  error  provided  for  in  this 
act  in  respect  to  the  circuit  courts  of  appeals,  including  all 
provisions  for  bonds  or  other  securities  to  be  required  and 
taken  on  such  appeals  and  writs  of  error."  (6  Fed.  Stats. 
Ann.,  2d  ed.,  p.  170;  3  U.  S.  Comp.  Stats.  1916,  §  1651.) 

The  effect  of  this  act  is  to  make  the  practice  and  procedure  upon 
appeals  and  writs  of  error  to  the  circuit  court  of  appeals  identical 
with  that  upon  appeal  and  error  to  the  Supreme  Court,  except  as 
to  difference  resulting  from  differences  between  rules  of  the  various 
circuits.  The  latter  part  of  this  act  is  §  132,  Jud.  Code,  quoted 
above,  §  1510,  giving  the  circuit  judges  the  same  powers  and 
duties  as  other  judges  as  to  allowance  of  appeals  and  writ  of 
error. 

§1658.  Allowance  of  Writs  of  Error  or  Appeals.  The  first 
step  in  prosecuting  an  appeal,  whether  to  the  Supreme  Court  or  the 
circuit  court  of  appeals,  is  to  have  the  appeal  "allowed."  When 
this  is  done  the  appeal  is  "taken"  in  the  sense  prescribed  by  the 
statutes  fixing  the  time  for  appeal. 


§  1658,  Ch.  75        MANUAL  OF  FEDERAL,  PROCEDURE.  596 

There  are  two  methods  of  having  an  appeal  allowed  : 
First.  When  the  decree  of  the  lower  court  is  rendered,  appel- 
lant may  give  notice  of  appeal  in  open  court,  at  the  same  time 
filing  his  assignment  of  errors  (which  by  court  rules  must  be  filed 
before  the  allowance)  and  also  filing  and  procuring  the  accept- 
ance of  the  necessary  bond  within  the  term  of  court  then  pending, 
An  appeal  thus  allowed  in  open  court  is  perfected  without  any 
written  petition  for  appeal  or  citation. 

Second.  If  the  appeal  is  not  perfected  as  above,  the  first  step 
toward  having  it  allowed  is  the  preparation  and  filing  of  a  petition 
for  appeal  addressed  to  the  lower  court,  which  may  be  substantially 
in  the  following  form: 

'•    S^nW   LiO  .S'i/F.foSOO'T'I        V 
[Title  of  Cause.]  [Title    of   Court.] 

In  Equity. 

PETITION  FOB  APPEAL. 
To  the  Honorable  -  ,  District  Judge. 

The  above-named  -  feeling  aggrieved  by  the  decree  rendered  and 
entered  in  the  above-entitled  cause  on  the  -  day  of  -  ,  A.  D.  19  —  , 
does  hereby  appeal  from  said  decree  to  the  circuit  court  of  appeals  for  the 
-  circuit  [or  to  the  Supreme  Court  of  the  United  States]  for  the  reasons 
set  forth  in  the  assignment  of  errors  filed  herewith,  and  he  prays  that  his 
appeal  be  allowed  and  that  citation  be  issued  as  provided  by  law,  and  that 
a  transcript  of  the  record  proceedings  and  document  upon  which  said  decree 
was  based,  duly  authenticated  be  sent  to  the  United  States  Circuit  Court 
of  Appeals  for  the  -  Circuit  [or  to  the  Supreme  Court  of  the  United 
States,  sitting  at  -  ],  under  the  rules  of  such  court  in  such  cases  made 
and  provided. 

And  your  petitioner  further  prays  that  the  proper  order  relating  to  the 
required  security  to  be  required  of  him  be  made.  *  ''.«;! 


petition  having  been  filed,  it  must  be  allowed,  for  in  all 
appealable  cases,  the  right  of  appeal  is  absolute,  the  only  discre- 
tion which  the  judge  can  exercise  being  as  to  the  sufficiency  of  the 
appeal  bond,  and  if  he  refuses  to  allow  the  appeal,  mandamus  may 
be  resorted  to. 

But  a  writ  of  error  may  be  denied  if  the  grounds  assigned  in 
the  assignment  of  errors  appear  insufficient  to  the  court.  (Simp- 
son v.  First  National  Bank,  129  Fed.  257,  63  C.  C.  A.  371.) 


597  APPEAL  AND  ERROR.  Ch.  75,  §  1659 

No  particular  form  of  allowance  is  required,  the  usual  proceed- 
ing being  an  indorsement  upon  the  petition,  to  the  following  effect : 

Appeal  allowed  upon  giving  bond  as  required  by  law  for  the  sum  of  $ . 

,  Judge. 

Or  the  following  separate  order  of  allowance  may  be  made: 

[Title  of  Cause.]  [Title   of   Court.] 

In  Equity — No.   . 

ORDER  ALLOWING  APPEAU 

On   motion   of  ,   Esq.,   solicitor   and   counsel   for   complainant,  it   is 

hereby  ordered  that  an  appeal  to  the  Supreme  Court  of  the  United  States 
from  the  decree  heretofore  filed  and  entered  herein,  be,  and  the  same  is 
hereby  allowed,  and  that  a  certified  transcript  of  the  record,  testimony, 
exhibits,  stipulations,  and  all  proceedings  be  forthwith  transmitted  t<>  said 
Supreme  Court  of  the  United  States.  It  is  further  ordered  that  tLe  bond 

on  appeal  be  fixed  at  the  sum  of  $ .      [If  supersedeaa  be   desired,  here 

insert,  "the  same  to  act  as  a  supersedes  bond  and  also  as  *  bond  for  cost 
and  damages  on  appeal."] 

Dated ,  19—, 

,  Justice. 

The  mere  approval  of  the  bond  or  signing  oi  the  petition  by 
the  judge  amounts  to  an  allowance  of  the  appeal,  and  if  the  peti- 
tion for  appeal  and  assignment  of  errors  are  filed  within  the  time 
allowed,  a  subsequent  allowance  of  the  appeal  operates  by  relation 
as  of  that  time,  and  the  appeal  is  properly  perfected  within  that 
time. 

§  1659.  Amendment  of  Writ  of  Error.  Prior  to  the  passage 
of  the  act  of  June  1,  1872,  any  formal  defect  in  a  writ  of  error 
defeated  the  jurisdiction  of  the  Supreme  Court,  and  could  not  be 
so  amended  as  to  cure  any  such  defect.  (Insurance  Co.  of  Valley 
of  Va.  v.  Mordecai,  21  How.  195,  16  L.  Ed.  94;  Porter  v.  Foley, 
21  How.  393,  16  L.  Ed.  154;  Carroll  v.  Dorsey,  20  How.  204,  15 
L.  Ed.  803;  Hodge  v.  Williams,  22  How.  87,  16  L.  Ed.  237;  Wilson 
v.  Life  &  F.  Ins.  Co.,  12  Pet.  140,  9  L.  Ed.  1032;  Deneale  v.  Archer, 
8  Pet.  526,  8  L.  Ed.  1033 ;  Davenport  v.  Fletcher,  16  How.  142,  14 
L.  Ed  879;  Miller  v.  McKenzie,  10  Wall.  582, 19  L.  Ed.  1043;  Mus- 


§  1G59,  Ch.  75        MANUAL  OP  FEDERAL  PROCEDURE.  598 

sina  v.  Cavazos,  6  Wall.  355,  361,  18  L.  Ed.  810;  The  Protector,  11 
Wall.  82,  20  L.  Ed.  47 ;  Moulder  v.  Forest,  154  U.  S.  567,  19  L.  Ed. 
154,  14  Sup.  Ct.  1207.) 

§  1005,  Rev.  Stats.,  taken  from  the  act  of  June  1,  1872,  permits 
an  amendment  of  writs  of  error  as  to  matters  of  form  subject  to 
the  discretion  of  the  court.  The  section  is  as  follows: 

"The  Supreme  Court  may,  at  any  time,  in  its  discretion 
and  upon  such  terms  as  it  may  deem  just,  allow  an  amend- 
ment of  a  writ  of  error,  when  there  is  a  mistake  in  the  tcste 
of  the  writ,  or  a  seal  to  the  writ  is  wanting,  or  when  the  writ 
is  made  returnable  on  a  day  other  than  the  day  of  the  com- 
mencement of  the  term  next  ensuing  the  issue  of  the  writ, 
or  when  the  statement  of  the  title  of  the  action  or  parties 
thereto  in  the  writ  is  defective,  if  the  defect  can  be  remedied 
by  reference  to  the  accompanying  record,  and  in  all  other 
particulars  of  form:  Provided,  the  defect  has  not  preju- 
diced, and  the  amendment  will  not  injure  the  defendant  in 
error."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  196;  3  U.  S.  Comp. 
Stats.  1916,  §  1664.) 

This  section  permits  amendments  in  the  instances  therein 
enumerated  to  be  allowed  by  the  circuit  court  of  appeals  as  well 
as  by  the  Supreme  Court,  it  being  provided  by  the  act  of  March 
3,  1891,  section  11,  that  "all  provisions  of  law  now  in  force  regu- 
lating the  methods  and  system  of  review  through  appeals  or  writs 
of  error  shall  regulate  the  method  and  system  of  appeals  and 
writs  of  error  provided  for  in  this  act  in  respect  of  the  circuit 
court  of  appeals,  including  all  provision  for  bonds  or  other  securi- 
ties to  be  required  and  taken  on  such  appeals  and  writs  of  error." 
(Cotter  v.  Alabama  G.  S.  R.  Co.,  61  Fed.  747,  10  C.  C.  A.  35.) 

The  statute  is  largely  self-explanatory  as  to  the  cases  in  which 
an  amendment  may  be  allowed,  but  it  is  to  be  borne  in  mind 
that  permission  to  amend  is  not  a  matter  of  right,  but  is  given 
only  when  in  the  discretion  of  the  court  it  is  deemed  just  and 
proper.  (Pearson  v.  Yewdall,  95  U.  S.  294,  24  L.  Ed.  436.) 

The  theory  of  §  1005,  Rev.  Stats.,  is  that  a  colorable  writ  shall 
operate  as  a  writ  of  error,  the  court  being  given  power  to  amend 


599  APPEAL  AND  ERROR.  Ch.  75,  §  KJ,")9 

it  in  so  far  as  it  is  informal.  (Cotter  v.  Alabama  G.  S.  R.  Co., 
61  Fed.  747,  10  C.  C.  A.  35.) 

But  a  purported  writ  of  error  in  the  name  of  the  chief  justice 
of  the  supreme  court  of  a  state,  bearing  the  teste  of  that  chief 
justice,  signed  by  the  clerk  and  sealed  by  the  seal  of  that  court, 
but  not  in  the  name  of  the  President,  or  under  the  authority  of 
the  United  States,  is  not  a  colorable  writ  in  such  sense  as  to  allow 
amendment.  (Bondurant  v.  Watson,  103  U.  S.  278,  26  L.  Ed. 
447.) 

However,  a  writ  running  in  the  name  of  the  President  of  the 
United  States,  but  defective  in  that  it  was  not  tested  by  the  chief 
justice  of  the  United  States,  nor  signed  by  the  clerk  of  the  Su- 
preme Court  of  the  United  States,  and  did  not  bear  the  seal  of 
either  the  Supreme  Court  or  the  circuit  court,  but,  instead,  was 
sealed  with  the  seal  of  the  supreme  court  of  Texas,  tested  by  the 
chief  justice  and  signed  by  the  clerk  of  that  court,  is  held  to  be  a 
colorable  writ  and  subject  to  amendment.  (Texas  etc.  Ry.  Co.  v. 
Kirk,  111  U.  S.  486,  28  L.  Ed.  481,  4  Sup.  Ct.  500.) 

The  power  to  permit  the  amendment  of  a  defective  writ  under 
this  section  is  very  liberal,  and  it  is  not  fatal  that  more  than  six 
months  had  passed  since  the  final  decree  sought  to  be  reviewed 
was  pronounced.  The  statute  allows  the  amendment  at  any  time 
in  the  discretion  of  the  court.  (Cotter  v.  Alabama  G.  S.  R.  Co., 
61  Fed.  747,  10  C.  C.  A.  35.) 

Power  to  allow  an  amendment,  however,  depends  primarily 
upon  whether  or  not  the  defect  can  be  remedied  by  reference  to 
the  accompanying  record.  If  it  cannot,  no  amendment  can  be 
granted.  (Cotter  v.  Alabama  G.  S.  R.  Co.,  61  Fed.  750,  10  C.  C.  A. 
35;  Martin  v.  Burford,  176  Fed.  555,  100  C.  C.  A.  159;  Estis  v. 
Trabue,  128  U.  S.  228,  32  L.  Ed.  437,  9  Sup.  Ct.  58.) 

But  when  an  amendment  is  allowed,  it  dates  back  by  relation  to 
the  date  of  its  original  issuance,  and  presupposes  jurisdiction  from 
that  date.  (Knickerbocker  Life  Ins.  Co.  v.  Pendleton,  115  U.  S. 
339,  29  L.  Ed.  432,  6  Sup.  Ct.  74.) 


§  1659,  Ch.  75        MANUAL  OF  FEDERAL  PROCEDURE.  600 

No  amendment  can  be  allowed  if  it  will  result  in  prejudice  or 
injury  to  the  adverse  party,  or  if  it  appears  that  the  amendment 
requested,  if  granted,  would  be  useless,  as  in  a  case  where  the 
question  presented  by  the  record  is  already  settled  by  previous 
decisions  of  the  Supreme  Court.  (Pearson  v.  Yewdall,  95  U.  S. 
294,  24  L.  Ed.  436.) 

The  name  of  a  party  omitted  by  accident  may  be  added  by  way 
of  amendment  if  the  same  is  authorized  by  a  reference  to  the 
record.  (Walton  v.  Marietta  Chair  Co.,  157  U.  S.  346,  39  L.  Ed. 
725,  15  Sup.  Ct.  626;  Thomas  v.  Green  County,  146  Fed.  969,  77 
C.  C.  A.  487.) 

But  the  objection  that  a  plaintiff  is  not  the  real  party  in  in- 
terest cannot  be  set  up  by  way  of  amendment,  and  the  same  may 
be  said  of  the  objection  that  the  plaintiff  is  without  capacity  to 
sue.  These  things  must  be  set  up  before  trial.  (Texas  &  P.  R. 
Co.  v.  Jackson,  193  Fed.  948,  113  C.  C.  A.  576 ;  St.  Louis  &  S.  F. 
R.  Co.  v.  Herr,  193  Fed.  950,  113  C.  C.  A.  578 ;  Northwestern  S.  S. 
Co.  v.  Cochran,  191  Fed.  149,  111  C.  C.  A.  626.) 

Amendments  in  "all  particulars  of  form"  have  been  held  to 
include  a  case  where  the  writ  of  error  was  not  attached  to  the 
transcript  nor  made  a  part  of  the  record,  but  was  returned  to 
the  appellate  court  upon  the  day  when  the  transcript  was  filed 
therein  properly  indorsed.  Having  performed  its  function,  it 
is  permitted  to  be  attached  to  the  record  after  being  received  by 
the  appellate  court  as  should  have  been  done  in  the  first  instance. 
(Cotter  v.  Alabama  G.  S.  R.  Co.,  61  Fed.  747,  10  C.  C.  A.  35.) 

Amendments  under  this  section  have  been  allowed  in  the  follow- 
ing cases:  Texas  R,  Co.  v.  Kirk,  111  U.  S.  486,  28  L.  Ed.  481, 
4  Sup.  Ct.  500;  Course  v.  Stead,  4  Ball.  22,  1  L.  Ed.  724;  Burnham 
v.  North  Chicago  Street  R.  R.  Co.,  87  Fed.  168,  30  C.  C.  A.  594 ; 
Alaska  United  Gold  Mining  Co.  v.  Keating,  116  Fed.  561,  53 
C.  C.  A.  655;  Miller  v.  Texas,  153  U.  S.  535,  38  L.  Ed.  812,  14 
Sup.  Ct.  874;  McPhaul  v.  Lapsey,  20  Wall.  282,  22  L.  Ed.  346; 
Walton  v.  Marietta  Chair  Co.,  157  U.  S.  342,  39  L.  Ed.  725,  15  Sup. 
Ct.  626;  Pacific  Bank  v.  Mixter,  114  U.  S.  463,  29  L.  Ed,  221, 


801  APPEAL  AND  ERROR.     Ch.  75,  §§  1660-1661 

5  Sup.  Ct.  944;  Moore  v.  Simonds,  100  U.  S.  145,  25  L.  Ed.  590; 
Gumbel  v.  Pitkin,  113  U.  S.  545,  28  L.  Ed.  1128,  5  Sup.  Ct.  616; 
Estis  v.  Trabue,  128  U.  S.  225,  32  L.  Ed.  437,  9  Sup.  Ct.  58 ;  United 
States  v.  Schoverling,  146  U.  S.  76,  36  L.  Ed.  893,  13  Sup.  Ct.  24; 
Atherton  v.  Fowler,  91  U.  S.  143,  23  L.  Ed.  265 ;  Evans  v.  Brown, 
109  U.  S.  180,  27  L.  Ed.  898,  3  Sup.  Ct.  83 ;  Mossman  v.  Higginson, 
4  Dall.  12,  1  L.  Ed.  720;  Sea  v.  Connecticut  Mutual  I^ife  Ins.  Co., 
154  U.  S.  659,  25  L.  Ed.  772,  14  Sup.  Ct.  1191 ;  Hampton  v.  Rouse, 
15  Wall.  684,  21  L.  Ed.  250;  Semmes  v.  United  States,  91  U.  S.  21, 
23  L.  Ed.  193 ;  National  Bank  v.  Bank  of  Commerce,  99  U.  S.  608, 
25  L.  Ed.  362. 

§  1660.    Writ  of  Error— By  Whom  Issued. 

§  1004,  Rev.  Stats.  ' '  Writs  of  error  returnable  to  the  Su- 
preme Court  or  a  circuit  court  of  appeals  may  be  issued  as 
well  by  the  clerks  of  the  district  courts,  under  the  seals 
thereof,  as  by  the  clerk  of  the  Supreme  Court  or  of  a  circuit 
court  of  appeals.  When  so  issued  they  shall  be,  as  nearly 
as  each  case  may  admit,  agreeable  to  the  form  of  a  writ  of 
error  issued  by  the  clerk  of  the  supreme  court  or  the  clerk  of 
a  circuit  court  of  appeals."  (37  Stats.  54;  6  Fed.  Stats.  Ann., 
2d  ed.,  p.  194;  3  U.  S.  Comp.  Stats.  1916,  §  1663.) 

§  1661.    Assignment  of  Errors  on  Writ  of  Error. 

§  997,  Rev.  Stats.  "There  shall  be  annexed  to  and  returned 
with  any  writ  of  error  for  the  removal  of  a  cause,  at  the  day 
and  place  therein  mentioned,  an  authenticated  transcript  of 
the  record,  an  assignment  of  errors,  and  a  prayer  for  reversal, 
with  a  citation  to  the  adverse  party."  (6  Fed.  Stats.  Ann., 
2d  ed.,  p.  163;  3  U.  S.  Comp.  Stats.  1916,  §  1653.) 

This  assignment  of  errors  must  set  forth  separately  and  par- 
ticularly each  error  asserted  and  intended  to  be  urged  under 
Supreme  Court  Rule  35  (Appendix,  post),  and  C.  C.  A.  Rule  11 
(Appendix,  post). 

It  must  be  filed  with  the  petition  for  the  writ,  and  no  writ  can  be 
allowed  until  the  assignment  has  been  filed.  The  form  of  assign- 


§§  1662-1663,  Ch.  75    MANUAL  OP  FEDERAL  PROCEDURE.  602 

ment  suggested  §  1662  below,  will  suffice  as  a  guide  for  the  assign- 
ment upon  error. 

The  assignment  of  errors  on  appeal  differs  from  the  petition  for 
appeal  in  that  it  must  set  out  specifically  and  directly  every  re- 
spect in  which  the  decree  is  erroneous  and  the  reason  why  it  is  so ; 
while  the  petition  asks  for  the  allowance  of  the  appeal  in  general 
terms. 

The  assignment  of  errors  must  be  so  complete  and  clear  that 
the  court  may  obtain  therefrom  a  specific  statement  of  the  ques- 
tion presented  without  reference  to  the  brief  or  any  other  source 
outside  of  the  assignment  itself.  (Van  Gunden  v.  Virginia  Coal  & 
Iron  Co.,  52  Fed.  838,  3  C.  C.  A.  294;  Grape  Creek  Coal  Co.  v. 
Farmers'  Loan  &  Trust  Co.,  63  Fed.  891,  12  C.  C.  A.  350.) 

§  1662.     Form  of  Assignment  of  Errors. 

[Title  of  Cause.]  [Title  of  Trial  Court.] 

In   Equity — No.   . 

ASSIGNMENT  or  ERRORS. 

Now  comes  the  defendant  in  the  above-entitled  cause  and  files  the  follow- 
ing assignment  of  errors  upon  which  he  will  rely  upon  his  prosecution  of 
the  appeal  in  the  above-entitled  cause,  from  the  decree  made  by  this 
honorable  court  on  the day  of ,  19 — . 

I. 

That  the  United  States  district  court  for  the  district  of  erred 

in  overruling  the  demurrer  interposed  by  the  defendant  and  appellant  to 
the  original  complaint  filed  in  the  cause. 

II. 

[State  in  separate  paragraphs  each  error  complained  of.] 

Wherefore  the  appellant  pray«  that  said  decree  be  reversed  and  that  said 

district  court  for  the  district  of  be  ordered  to  enter  a  decree 

reversing  the  decision  of  the  lower  court  in  said  cause. 

,  Attorneys  for  Appellant. 

§  1663.  Citation.  Except  in  cases  of  appeals  allowed  in  open 
court  at  the  term  during  which  the  decree  appealed  from  was 
rendered,  a  citation  returnable  at  the  same  term  with  the  appeal 


603  APPEAL  AND  ERROR.  Ch.  75,  §1663 

or  writ  of  error  is  necessary  to  perfect  jurisdiction  of  the  appeal 
or  writ  of  error,  unless  waived.  (Jacobs  v.  George,  150  U.  S. 
415,  37  L.  Ed.  1127,  14  Sup.  Ct.  159;  Hewitt  v.  Filbert,  116  U.  S. 
142,  29  L.  Ed.  581,  6  Sup.  Ct.  319 ;  West  v.  Irwin,  54  Fed.  419,  4 
C.  C.  A.  401.) 

§999,  Rev.  Stats.  "When  the  writ  is  issued  by  the  Su- 
preme Court  to  a  circuit  court,  the  citation  shall  be  signed 
by  a  judge  of  such  circuit  court,  or  by  a  justice  of  the  Supreme 
Court,  and  the  adverse  party  shall  have  at  least  thirty  days' 
notice;  and  when  it  is  issued  by  "the  Supreme  Court  to  a  state 
court,  the  citation  shall  be  signed  by  the  chief  justice  or  judge, 
or  chancellor  of  such  court,  rendering  the  judgment  or  passing 
the  decree  complained  of,  or  by  a  justice  of  the  Supreme 
Court  of  the  United  States,  and  the  adverse  party  shall  have 
at  least  thirty  days'  notice."  (6  Fed.  Stats.  Ann.,  2d  ed., 
p.  184;  '3  U.  S.  Comp.  Stats.  1916,  §  1659,  p.  3316.)  ) 

§998,  Rev.  Stats.  "When  the  writ  is  issued  by  a  circuit 
court  to  a  district  court,  the  citation  shall  be  signed  by  the 
judge  of  such  district  court,  or  by  the  circuit  judge  of  such 
circuit  court,  or  by  a  justice  of  the  Supreme  Court,  and  the 
adverse  party  shall  have  at  least  twenty  days'  notice." 
(6  Fed.  Stats.  Ann.,  2d  ed.,  p.  183;  3  U.  S.  Comp.  Stats.  1916, 
§  1658,  p.  3312.) 

This  citation  is  a  formal  notice  of  the  allowance  of  an  appeal, 
is  intended  only  for  the  purpose  of  notice,  is  not  jurisdictional, 
and  may  be  waived  or  substituted  by  proof  of  other  equivalent 
notice.  (Farmers'  Loan  &  Trust  Co.  v.  Chicago  &  N.  R.  R.  Co., 
73  Fed.  317, 19  C.  C.  A.  477 ;  Dayton  v.  Lash,  94  U.  S.  112,  24  L.  Ed. 
33 ;  Grigsby  v.  Purcell,  99  U.  S.  505,  25  L.  Ed.  354 ;  Chicago  etc.  R. 
Co.  v.  Blair,  100  U.  S.  661,  25  L.  Ed.  587 ;  Jacobs  v.  George,  150 
U.  S.  415,  37  L.  Ed.  1127,  14  Sup.  Ct.  159.) 

A  distinction  is  drawn,  however,  between  citation  on  appeal 
and  upon  error,  in  that  notice  in  open  court,  in  the  former,  excuses 
the  issuance  of  the  citation,  while  in  the  latter  it  does  not. 
(United  States  v.  Phillips,  121  U.  S.  254,  30  L.  Ed.  914,  7  Sup.  Ct. 
874;  Loveless  v.  Ransom,  109  Fed.  391,  48  C.  C.  A.  434.) 


§  1664,  Ch.  75        MANUAL  OP  FEDERAL  PROCEDURE.  604 

The  citation  should  be  signed  as  prescribed  by  §§  998-999,  Rev. 
Stats.,  but  failure  to  sign  is  immaterial  if  the  defendant  in  error 
enter  his  appearance.  (Freeman  v.  Clay,  48  Fed.  849,  1  C.  C.  A. 
115.) 

No  particular  form  of  citation  is  required  by  statute,  but,  in 
the  absence  of  a  printed  form  supplied  by  the  court  from  which 
the  appeal  is  taken,  the  following  is  suggested : 

[Title  of  Trial  Court.] 

In   Equity — No.   . 

[Title  of  Cause.]  CITATION    ON    APPEAL. 

United  States  of  America, — ss. 

To  and  ,  Greeting: 

You  are  hereby  cited  and  admonished  to  be  and  appear  at  the  Supreme 
Court  of  the  United  States,  to  be  held  at  the  city  of  Washington,  in  the 

District  of  Columbia,  on  the  day  of  ,  A.  D.  19 — ,  pursuant  to  an 

order  allowing  an  appeal  filed  and  entered  in  the  clerk's  office  of  the  dis- 
trict court  of  the  United  States  for  the  district  of  . from  a  final 

decree  signed,  filed,  and   entered  on  the  day  of  ,  19 — ,  in   that 

certain  suit,  being  in  equity  No.  ,   wherein  is   plaintiff  and  you 

are  defendant  and  appellee,  to  show  cause,  if  any  there  be,  why  the  decree 
rendered  against  the  said  appellant,  as  in  said  order  allowing  appeal  men- 
tioned, should  not  be  corrected  and  why  justice  should  not  be  done  to  the 
parties  in  that  behalf. 

Witness  the  Honorable  ,  United  States  District  Judge  for  the  

District  of  ,  this  day  of  ,  19 — ,  and  of  the  Independence  of 

the  United  States  . 

> 
U.  S.  District  Judge  for  the  District  of  . 

The  citation  must  be  served  personally  upon  the  attorney  of 
record,  or  the  party  who  recovers  judgment, — the  return  being 
made  according  to  the  rule  of  court  governing  the  service  of  cita- 
tions. (Supreme  Court  Rule  8,  C.  C.  A.  Rule  14.) 

§  1664.  Bond.  The  petition  having  been  filed,  accompanied 
by  the  assignment  of  errors,  a  bond  is  required  of  the  appellant 
payable  to  the  appellee,  conditioned  as  provided  in  the  following 
quoted  section: 


605  APPEAL  AND  ERROR.  Ch.  75,  §  1664 

§1000.  Rev.  Stats.  "  Every  justice  or  judge  signing  a 
citation  on  any  writ  of  error  shall,  except  in  cases  brought 
up  by  the  United  States  or  by  direction  of  any  department 
of  the  government,  take  good  and  sufficient  security  that  the 
plaintiff  in  error  or  the  appellant  shall  prosecute  his  writ  or 
appeal  to  effect,  and,  if  he  fail  to  make  his  plea  good,  shall 
answer  all  damages  and  costs,  where  the  writ  is  a  supersedeas 
and  stays  execution,  or  all  costs  only  where  it  is  not  a  super- 
sedeas as  aforesaid."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  187; 
3  U.  S.  Comp.  Stats.  1916,  §  1660.) 

The  text  and  form  suggested  below  apply  as  well  to  error  pro- 
ceedings with  such  changes  in  phraseology  as  may  be  necessary  to 
adapt  it. 

This  bond  must  be  approved  before  the  appeal  is  perfected,  but 
it  is  not  jurisdictional,  and  if  not  given  at  the  time  when  the 
appeal  is  taken,  the  failure  to  do  so  constitutes  a  mere  irregu- 
larity which  may  be  cured  by  the  Supreme  Court  allowing  the 
appellant  to  file  the  proper  bond  within  a  reasonable  time. 
(Brown  v.  McConnel,  124  U.  S.  489,  31  L.  Ed.  495,  8  Sup.  Ct.  559 ; 
Schenck  v.  Diamond  Match  Co.,  73  Fed.  22,  19  C.  C.  A.  352 ;  Anson 
v.  Blue  Ridge  R.  R.  Co.,  23  How.  1,  16  L.  Ed.  517 ;  Davidson  v. 
Lanier,  4  Wall.  447,  18  L.  Ed.  377 ;  Seymour  v.  Freer,  5  Wall.  822, 
18  L.  Ed.  564.) 

In  accordance  with  this  rule  a  bond  furnished  one  month  after 
the  appeal  is  taken  has  been  held  to  be  furnished  within  a  reason- 
able time.  (Schenck  v.  Diamond  Match  Co.,  73  Fed.  22, 19' C.  C.  A. 
352.) 

A  lapse  of  four  years  where  permission  to  supply  the  bond  has 
never  been  asked  has  been  held  to  constitute  ground  for 'dismissal 
of  appeal.  (Beardsley  v.  Arkansas  &  L.  R.  R.  Co.,  158  U.  S.  123, 
39  L.  Ed.  919, 15  Sup.  Ct.  786.) 

Not  being  jurisdictional,  bond  may  be  waived  by  the  appellees. 
(Kingsbury  v.  Buckner,  134  U.  S.  650,  33  L.  Ed.  1047,  10  Sup.  Ct. 
638.) 

The  sufficiency  of  the  security  is  discretionary  with  the  trial 
judge,  and  he  may,  within  his  discretion,  accept  a  bond  signed  by 


§  1664,  Ch.  75        MANUAL  OF  FEDERAL  PROCEDURE.  606 

any  number  of  sureties,  or  one  in  which  they  are  either  jointly 
and  severally  or  jointly  or  severally  bound,  or  one  in  which  each 
surety  is  only  bound  severally  for  a  specified  part  of  the  security. 
(New  Orleans  Ins.  Co.  v.  Albro  Co.,  112  U.  S.  506,  28  L.  Ed.  809, 
5  Sup.  Ct.  289.) 

The  security  required  upon  appeal  must  be  taken  by  the  justice 
or  judge  signing  the  citation.  He  cannot  delegate  this  power  to, 
the  clerk.  (Freeman  v.  Clay,  48  Fed.  849,  1  C.  C.  A.  115 ;  O'Reilly 
v.  Edrington,  96  U.  S.  724,  24  L.  Ed.  659;  Martin  v.  Hunter's 
Lessee,  1  Wheat.  361,  4  L.  Ed.  Ill ;  Haskins  v.  St.  L.  &  E.  R.  R. 
Co.,  109  U.  S.  106,  27  L.  Ed.  873,  3  Sup.  Ct.  72.) 

But  if  he  should  do  so,  the  appeal  will  not  usually  be  dismissed, 
but  opportunity  will  be  afforded  the  appellant  to  secure  a  bond 
properly  approved  by  the  judge.  (Cases  last  cited  above.) 

All  obligees  should  be  individually  named  in  the  bond  to 
insure  certainty,  but  the  fact  that  they  are  not,  as  where  it  is 
made  payable  to  John  Smith  et  al.,  will  not  be  considered  grounds 
for  the  dismissal  of  the  appeal,  and  opportunity  will  be  given  to 
file  a  proper  bond.  (Swift  &  Co.  v.  Kortrecht,  110  Fed.  328,  49 
C.  C.  A.  68.) 

On  the  other  hand,  if  others  besides  the  party  from  whom  the 
decree  appealed  from  is  taken  are  named  as  obligees  in  the  bond, 
its  validity  is  not  thereby  affected.  (Hill  v.  Chicago  &  E.  Ry.  Co., 
129  U.  S.  170,  32  L.  Ed.  651,  9  Sup.  Ct.  269.) 

The  bond  may  be  in1  the  following  form : 
[Title  of  Trial  Court.] 

In  Equity — No.  *-. 

[Title  of  Cause.]  BOND  ON  APPEAL. 

Know  all  men  by  these  presents,  that  we,  ,  as  principal,  and  — — 

and  ,  as  sureties,  of  the  county  of  — — ,  state  of  ,  are  held  and 

firmly  bound  unto  in  the  sum  of  $ ,  lawful  money  of  the  United 

States,  to  be  paid  to  them  and  their  respective  executors,  administrators 
and  successors;  to  which  payment,  well  and  truly  to  be  made,  we  bind 
ourselves  and  each  of  us,  jointly  and  severally,  and  each  of  our  heirs, 
executors,  and  administrators,  by  these  presents. 

Sealed  with  our  seals  and  dated  this  day  of  ,  19 — . 


607  APPEAL  AND  ERROR.  Cll.  75,  §  1GG5 

Whereas  the  above-named  ,  has  prosecuted  a  writ  of  error  to  the 

Supreme  Court  of  the  United  States  to  reverse  the  judgment  of  the  district 
court  for  the  district  of  ,  in  the  above-entitled  cause: 

Now,  therefore,  the  condition  of  this  obligation  is  such  that  if  the 

above-named  shall  prosecute  his  said  appeal  to  effect  and  answer  all 

costs  if  he  fail  to  make  good  his  plea,  then  this  obligation  shall  be  void; 
otherwise  to  remain  in  full  force  and  effect. 


State  of , 

County  of  — 

On  the  day  of  ,  19 — ,  personally  appeared  before  me  and 

,  respectively  known  to  me  to  be  the  persons  described  in  and  who  duly 

executed  the  foregoing  instrument  as  parties  thereto,  and  respectively 
acknowledged,  each  for  himself,  that  they  executed  the  same  as  their  free 
act  and  deed  for  the  purposes  therein  set  forth. 

And  the  said  and  ,  being  respectively  by  me  duly  sworn,  says, 

each  for  himself  and  not  one  for  the  other,  that  he  is  a  resident  and  house- 
holder of  the  said  county  of  and  that  he  is  worth  the  sum  of  $ 

over  and  above  his  just  debts  and  legal  liability  and  property  exempt  from 
execution. 


Subscribed  and  sworn  to  before  me  this  day  of ,  A.  D.  19 — . 

[Seal]  — ,   Notary  Public. 

The  within  bond  is  approved  both  as  to  sufficiency  and  form  this  

day  of ,  19—.  , 

,  Justice. 

'l 

§  1665.    No  Bond  Required  of  United  States. 

§  1001,  Rev.  Stats.  "Whenever  a  writ  of  error,  appeal, 
or  other  process  in  law,  admiralty,  or  equity  issues  from  or  is 
brought  up  to  the  Supreme  Court  or  a  circuit  court,  either 
by  the  United  States  or  by  direction  of  any  department  of 
the  government,  no  bond,  obligation,  or  security  shall  be  re- 
quired from  the  United  States,  or  from  any  party  acting  under 
the  direction  aforesaid,  either  to  prosecute  said  suit  or  to 
answer  in  damages  or  costs.  In  case  of  an  adverse  decision, 


§  1666,  Ch.  75        MANUAL  OF  FEDERAL  PROCEDURE.  .  608 

such  costs  as  by  law  are  taxable  against  the  United  States,  or 
against  the  party  acting  by  direction  as  aforesaid,  shall  be 
paid  out  of  the  contingent  fund  of  the  department  under 
whose  directions  the  proceedings  were  instituted."  (6  Fed. 
Stats.  Ann.,  2d  ed.,  p.  192 ;  3  U.  S.  Comp.  Stats.  1916,  §  1661.) 

§  1666.    Supersedes. 

§  1007,  Rev.  Stats.  "In  any  case  where  a  writ  of  error 
may  be  a  supersedeas,  the  defendant  may  obtain  such  super- 
sedeas  by  serving  the  writ  of  (or)  error,  by  lodging  a  copy 
thereof  for  the  adverse  party  in  the  clerk's  office,  where  the 
record  remains,  within  sixty  days,  Sundays  exclusive,  after  the 
rendering  of  the  judgment  complained  of,  and  giving  the 
security  required  by  law  on  the  issuing  of  the  citation.  But 
if  he  desires  to  stay  process  on  the  judgment,  he  may,  having 
served  his  writ  of  error  as  aforesaid,  give  the  security  required 
by  law  within  sixty  days  after  the  rendition  of  such  judgment 
or  afterward,  with  the  permission  of  a  justice  or  judge  of  the 
appellate  court.  And  in  such  cases,  where  a  writ  of  error  may 
be  a  supersedeas,  executions  shall  not  issue  until  the  expiration 
of  ten  days."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  198;  3  U.  S. 
Comp.  Stats.  1916,  §  1666.) 

See  also  Rule  29,  Supreme  Court,  and  Rules  C.  C.  A.,  in  our 

i  ,   • 

Appendix. 

Under  this  section,  which  applies  alike  to  appeals  and  writs  of 
error,  it  is  held  that  supersedeas,  if  applied  for  in  strict  com- 
pliance with  the  statute,  is  a  matter  of  right.  (McCourt  v.  Singers- 
Bigger,  150  Fed..  102,  80  C.  C.  A.  56.) 

No  discretion  is  vested  in  the  judge,  othe'r  than  as  to  the  amount 
of  the  bond,  except  in  appeals  from  injunction,  where  the  granting 
of  a  supersedeas  is  discretionary  under  §  129,  Jud.  Code  (§  1502, 
supra} . 

Strict  compliance  with  the  statute  is  required,  however;  for 
supersedeas  is  purely  a  statutory  remedy,  and  unless  the  pre- 
scribed steps  are  taken  within  sixty  days,  Sundays  excluded,  from 
the  rendering  of  the  decree,  it  is  not  within  the  power  of  the  court 
to  award  a  supersedeas,  although  the  bond  required  may  be  given 


609  APPEAL  AND  ERROR.  Ch.  75,  §  1GG6 

after  that  time,  with  the  permission  of  the  appellate  court.  (Sage 
v.  Cent.  Ry.  Co.,  93  U.  S.  417,  23  L.  Ed.  935;  New  England  R. 
Co.  v.  Hyde,  101  Fed.  398,  41  C.  C.  A.  404.) 

Commenting  upon  the  clause  extending  the  time  for  giving  the 
bond,  the  Supreme  Court  says  in  the  case  of  Kitchen  v.  Randolph, 
93  U.  S.  86,  23  L.  Ed.  810: 

"Had  the  section  stopped  here  [the  first  clause]  a  plaintiff 
in  error  or  appellant  would  have  been  compelled  to  elect,  when 
he  sued  out  his  writ  of  error  or  took  his  appeal,  whether  he 
would  have  a  supersedeas  or  not ;  because  it  is*  made  one  of 
the  conditions  of  the  stay  of  proceedings  that  the  requisite 
security  shall  be  given,  upon  the  issuing  of  the  citation.  Hav- 
ing once  made  his  election,  he  would  be  concluded  by  what 
he  had  done.  But  Congress  foreseeing,  undoubtedly,  that 
cases  might  arise  in  which  serious  loss  would  result  from  such 
a  rule,  went  further,  and,  in  a  subsequent  part  of  the  section, 
provided  that  if  a  writ  of  error  had  been  served,  as  required 
in  the  first  paragraph,  a  stay  might  be  had  as  a  matter  of 
right  by  giving  the  required  security  within  sixty  days,  and 
afterwards,  as  a  matter  of  favor,  if  permission  could  be  ob- 
tained from  the  designated  justice  or  judge.  Thus  prompt 
action  in  respect  to  the  writ  was  required  and  indulgence 
granted  only  as  to  the  security." 

The  supersedeas  order  may  be  incorporated  in  the  bond,  or  it 
may  be  in  the  form  of  a  separate  order  as  follows: 

[Title  of  Trial  Court.] 
[Title  of  Cause.]  SUPERSEDEAS  ORDER. 

This  cause  coming  on  to  be  heard  this  day  of  19 — ,  upon  the 

application  of  the  appellant  for  an  appeal  to  the  Supreme  Court  of  the 
United  States,  and  said  appeal  having  been  allowed,  it  is  ordered  that  the 
same  shall  operate  as  a  supersedeas,  the  said  appellant  having  executed 

bonds  in  the  sum  of  $ as  provided  by  law,  and  the  clerk  is  hereby 

directed  to  stay  the  mandate  of  the  district  court  of  the  district  of 

— — ,  until  the  further  order  of  this  court. 

,  Justice. 

Manual— 89 


§§  1667-1668,  Ch.  75    MANUAL  OP  FEDERAL  PROCEDURE.  •  610 

The  effect  of  a  supersedeas  is  to  hold  in  abeyance  all  proceed- 
ings in  the  court  below,  until  the  decree  is  affirmed.  (Ransom  v. 
Pierre,  101  Fed.  669,  41  C.  C.  A.  585 ;  Hovey  v.  McDonald,  109 
U.  S.  150,  27  L.  Ed.  888,  3  Sup.  Ct.  136.) 

§1667.    Injunction  Pending  Appeal. 

Equity  Rule  74.  "When  an  appeal  from  a  final  decree,  in 
an  equity  suit,  granting  or  dissolving  an  injunction,  is  allowed 
by  a  justice  or  a  judge  who  took  part  in  the  decision  of  the 
cause,  he  may,  in  his  discretion,  at  the  time  of  such  allowance, 
make  an  order  suspending,  modifying,  or  restoring  the  injunc- 
tion during  the  pendency  of  the  appeal,  upon  such  terms,  as 
to  bond  or  otherwise,  as  he  may  consider  proper  for  the 
security  of  the  rights  of  the  opposite  party."  (3  U.  S.  Comp. 
Stats.  1916,  §1536,  p.  2527;  Simkins'  Federal  Equity  Suit, 
3d  ed.,  p.  629.) 

§  1668.  Proceedings  in  Forma  Pauperis.  Since  the  enactment 
of  the  act  June  25,  1910,  c.  435,  amending  the  act  of  July  20,  1892, 
c.  209  (quoted  §404,  supra),  the  Supreme  Court  holds  that  the 
statute  applies  to  appellate  proceedings,  writs  of  error  or  appeals. 

In  Kinney  v.  Plymouth  Rock  Squab  Co.,  236  U.  S.  43,  59  L.  Ed. 
457,  at  p.  458  (35  Sup.  Ct.  236),  the  court  says: 

"Clarifying  the  1st  section  as  amended  by  these  considera- 
tions, it  becomes  clear  that  the  sole  change  operated  by  the 
amendment  was  to  bring  defendants  within  the  statute,  and 
to  extend  its  provisions  so  as  to  embrace,  first,  proceedings 
on  application  for  the  allowance  of  a  writ  of  error  or  appeal 
to  this  court  and  the  circuit  court  of  appeals,  second,  the 
appellate  proceedings  in  such  courts.  This  being  true,  it  is 
clear  that  as  to  the  new  subjects,  the  allowance  of  the  right  in 
those  cases  was  made  to  depend  upon  the  exercise  of  the  same 
discretion  as  to  the  meritorious  character  of  the  cause  to  the 
same  extent  provided  under  the  statute  before  amendment. 
That  is  to  say,  there  is  no  ground  for  a  contention  that  at  one 
and  the  same  time  the  statute  brought  certain  proceedings 
within  its  scope  and  yet  exempted  them  from  its  operation. 
Indeed,  this  conclusion  is  not  alone  sustained  by  the  implica- 


611  APPEAL  AND  ERROR.  Ch:  75,  §  1669 

tion  resulting  from  the  fact  that  the  safeguards  provided  for 
the  exercise  of  the  authority  found  in  the  statute  as  originally 
enacted  were  not  changed  by  the  amendment,  but  further 
plainly  results  from  the  express  provisions  of  the  amended 
section  (46)  manifesting  the  purpose  to  subject  the  granting 
of  the  right  in  both  the  new  instances  provided  for,  to  the 
exercise  of  the  judicial  discretion  to  determine  the  poverty, 
and  good  faith  of  the  applicant  and  the  meritorious  character 
of  the  cause  in  which  the  relief  was  asked." 

§  1669.    Record  on  Error. 

§  997,  Rev.  Stats.  "There  shall  be  annexed  to  and  returned 
with  any  writ  of  error  for  the  removal  of  a  cause,  at  the  day 
and  place  therein  mentioned,  an  authenticated  transcript  of 
the  record,  an  assignment  of  errors,  and  a  prayer  for  reversal, 
with  a  citation  to  the  adverse  party."  (6  Fed.  Stats.  Ann., 
2d  ed.,  p.  163;  3  U.  S.  Comp.  Stats.  1916,  §  1653.) 

In  addition  to  this  section,  the  contents  of  the  transcript  on 
error,  like  that  on  appeal,  is  governed  by  Supreme  Court  Rule  8, 
and  Circuit  Court  of  Appeals  Rules  14  and  15  (Appendix,  post). 

The  complete  record  upon  a  writ  of  error  taken  from  a  judg- 
ment at  law  consists  of  the  following  papers  and  proceedings: 
The  complaint  or  declaration;  the  subpoena  properly  indorsed 
with  the  marshal's  return;  the  defensive  pleading  and  joining  of 
issue;  proceedings  in  impaneling  the  jury,  verdict  of  the  jury; 
judgment  of  the  court;  bill  of  exceptions;  petition  for  writ  of 
error;  assignment  of  errors;  order  allowing  the  writ  of  error;  the 
writ  of  error;  the  citation;  the  bond,  and  the  certificate  of  the 
clerk  authenticating  the  record. 

It  is  not  always  necessary  that  all  the  documents  enumerated 
be  incorporated  in  the  transcript,  and  the  better  practice  is  a  stipu- 
lation between  counsel,  agreeing  as  to  the  contents  of  the  record. 
If  this  cannot  be  done,  it  is  the  duty  of  the  clerk  to  make  up  the 
record  in  accordance  with  a  precipe  filed  by  the  plaintiff  in  error. 
The  instructions  prepared  by  the  circuit  courts  of  appeals  of  the 
fourth  and  eighth  circuits  (Appendix,  post)  will  be  found  to  be 
of  use  to  the  practitioner. 


§  1669a,  Ch.  75        MANUAL  OF  FEDERAL  PROCEDURE.  612 

It  is  to  be  noted  that  by  the  terms  of  §  997,  Rev.  Stats,  supra, 
the  transcript  is  to  be  annexed  to  and  returned  with  the  original 
writ  of  error,  and  must  be  authenticated.  The  clerk's  certificate 
of  authentication  may  be  in  substantially  the  following  form: 

[Title  of  Court.] 
[Title  of  Cause.]  CERTIFICATE  OP  TRANSCRIPT. 

I,  ,  Clerk  of  the  — : —  Court,  etc.,  hereby  certify  the  foregoing  tran- 
script, consisting  of  pages  constitutes  a  full,  true  and  correct  copy  of 

the  proceedings  had  and  orders  entered  in  the  above-entitled  cause,  as  set 
forth  therein,  as  the  same  appears  on  file  and  of  record  in  this  office,  with 
the  exception  of  the  writ  of  error,  the  citation,"  and  assignment  of  error! 

herewith  attached,  at  pages  ,  ,  and  ,  respectively,  which  are 

the  original  writ,  assignment  and  citation. 

The  foregoing  constitutes  the  entire  transcript  in  the  cause. 

Witness  my  hand  and  the  efficial  seal  of  said  Court,  this  day  of 

,  A.  D.  19—. 

,  Clerk. 

V 

§  1669a.    Transcript  on  Appeal  and  Error. 

Part  Supreme  Court  Rule  8.  "I.  The  clerk  of  the  court  to 
which  any  writ  of  error  may  be  directed  shall  make  return 
of  the  same,  by  transmitting  a  true  copy  of  the  record,  and 
of  the  assignment  of  errors,  and  of  all  proceedings  in  the  case, 
under  his  hand  and  the  seal  of  the  court.  .  .  . 

"2.  In  all  cases  brought  to  this  court,  by  writ  of  error  or 
appeal,  to  review  any  judgment  or  decree,  the  clerk  of  the 
court  by  which  such  judgment  or  decree  was  rendered  shall 
annex  to  and  transmit  with  the  record  a  copy  of  the  opinion 
or  opinions  filed  in  the  case. 

"3.  No .  case  will  be  heard  until  a  complete  record,  con- 
taining in  itself,  and  not  by  reference,  all  the  papers,  exhibits, 
depositions,  and  other  proceedings  which  are  necessary  to  the 
hearing  in  this  court,  shall  be  filed. 

"4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion 
of  the  presiding  judge  in  any  district  court,  that  original  papers 
of  any  kind  should  be  inspected  in  this  court,  upon  writ  of  error 
or  appeal,  such  presiding  judge  may  make  such  rule  or  order 
for  the  safe-keeping,  transporting,  and  return  of  such  original 


613  APPEAL  AND  ERROR.  Ch.  75,  §  1669a 

papers  as  to  him  may  seem  proper,  and  this  court  will  receive 
and  consider  such  original  papers  in  connection  with  the  tran- 
script of  the  proceedings."  (-2  U.  S.  Comp.  Stats.  1916, 
p.  1812.) 

See  also  Rule  14,  Circuit  Court  of  Appeals,  in  Appendix. 

§  698,  Rev.  Stats.  "Upon  the  appeal  of  any  cause  in  equity, 
or  of  admiralty  and  maritime  jurisdiction,  or  of  prize  or  no 
prize,  a  transcript  of  the  record,  as  directed  by  law  to  be  made, 
and  copies  of  the  proofs,  and  of  such  entries  and  papers  on 
file  as  may  .be  necessary  on  the  hearing  of  the  appeal,  shall  be 
transmitted  to  the  Supreme  Court:  Provided,  That  either  the 
court  below  or  the  Supreme  Court  may  order  any  original 
document  or  other  evidence  to  be  sent  up,  in  addition  to  the 
copy  of  the  record,  or  in  lieu  of  a  copy  of  a  part  thereof. 
And  on  such  appeals  no  new  evidence  shall  be  received  in  the 
Supreme  Court,  except  in  admiralty  and  prize  causes."  (6 
Fed.  Stats.  Ann.,  2d  ed.,  p.  174;  3  U.  S.  Comp.  Stats.  1916, 
§  1654.) 

Record  on  appeal  as  made  up  by  the  clerk  of  the  lower  court 
if  complete  contains  the  following  papers  and  proceedings:  The 
bill  of  complaint;  process  or  subpoena,  with  the  proper  return  of 
the  marshal  indorsed  thereon ;  the  answer  or  other  defensive  plead- 
ing; the  testimony,  exhibits,  etc.,  of  both  parties,  plaintiff  and 
defendant;  the  opinion  and  decree  of  the  court;  the  petition  for 
appeal;  the  assignment  of  error;  bond  on  appeal;  the  citation  on 
appeal  and  the  clerk's  certificate.  (See  instruction  for  prepara- 
tion of  record  contained  in  Rules  of  C.  C.  A.  after  Rule  38,  4th 
Circuit,  and  Rule  45,  8th  Circuit,  Appendix,  post.) 

It  is  not  always  necessary,  however,  that  all  of  these  papers 
and  proceedings  are  necessary  for  a  hearing  of  the  appeal,  and 
therefore  it  may  be  stipulated  by  counsel  for  the  opposing  party 
that  certain  proceedings  may  be  omitted  from  the  record. 

If,  when  the  record  reaches  the  appellate  court,  anything  has 
been  omitted  therefrom  which  is  considered  necessary  for  a  hear- 
ing of  the  appeal,  the  proper  procedure  is  for  counsel  to  suggest  to 
the  appellate  court  a  diminution  of  the  record,  whereupon  the 


§  1670,  Ch.  75  MANUAL  OP  FEDERAL  PROCEDURE.  614 

omitted   portion  will,   if   considered   necessary   by   the   court,    be 
ordered  sent  up. 

§  1670.    Reduction  and  Preparation  of  Record  on  Appeal  and 
Error  to  Supreme  Court. 

Part  Supreme  Court  Rule  8,  Subd.  1.  "In  order  to  enable 
the  clerk  of  the  court  (to  which  any  writ  of  error  may  be 
directed)  to  perform  such  duty  (i.  e.,  transmitting  copy  of 
the  record),  and 'for  the  purpose  of  reducing  the  size  of  tran- 
scripts of  records  in  cases  brought  to  this  court  by  appeal  or 
writ  of  error,  by  eliminating  all  papers  not  necessary  to  the 
consideration  of  questions  to  be  reviewed,  it  shall  be  the  duty 
of  the  appellant  or  plaintiff  in  error,  or  his  attorney,  to  file 
with  the  clerk  of  the  lower  court,  together  with  proof  or 
acknowledgment  of  service  of  a  copy  on  the  appellee  or  de- 
fendant in  error,  or  his  counsel,  a  precipe,  which  shall  indi- 
cate the  portions  of  the  record  to  be  incorporated  into  the 
transcript  of  the  record  on  such  appeal  or  writ  of  error. 
Should  the  appellee,  or  defendant  in  error,  or  his  counsel, 
desire  additional  portions  of  the  record  incorporated  into  the 
transcript  of  the  record  to  be  filed  in  this  court,  he  shall  file 
with  the  clerk  of  the  lower  court  his  precipe  also,  within  ten 
days  thereafter  (unless  the  time  shall  be  enlarged  by  a  judge 
of  the  lower  court),  indicating  such  additional  portions  of  the 
record  desired  by  him. 

"The  clerk  of  the  lower  court  shall  transmit  to  this  court, 
as  the  transcript  of  the  record  in  the  case,  only  the  portions 
of  the  record  below  designated  by  both  parties  as  above  pro- 
vided. 

"The  parties  or  their  counsel,  however,  may  agree,  by  writ- 
ten stipulation  to  be  filed  with  the  clerk  of  the  lower  court, 
the  portions  of  the  record  which  shall  constitute  the  transcript 
of  record  on  appeal,  or  writ  of  error,  and  the  clerk  in  such 
case  shall  transmit  only  the  papers  designated  in  such  stipu- 
lation. 

' '  If  this  court  shall  find  that  portions  of  the  record  unneces- 
sary to  a  proper  presentation  of  the  case  have  been  incorpo- 
rated into  the  transcript  by  either  party,  the  court  may  order 
that  the  whole  or  any  part  of  the  clerk's  fee  for  supervising 
the  printing,  and  of  the  cost  of  printing  the  record,  be  paid 
by  the  offending  party."  (2  U.  S.  Comp.  Stats.  1916,  p.  1812.) 


615  APPEAL  AND  ERROR.          Ch.  75,  §  1671 

§  1671.    Reduction  and   Preparation  of  Record  Under  New 
Equity  Rules. 

Equity  Ride  75.    "In  case  of  appeal: 

"(a)  It  shall  be  the  duty  of  the  appellant  or  his  solicitor 
to  file  with  the  clerk  of  the  court  from  which  the  appeal  is 
prosecuted,  together  with  proof  or  acknowledgment  of  service 
of  a  copy  on  the  appellee  or  his  solicitor,  a  prccipe  which  shall 
indicate  the  portions  of  the  record  to  be  incorporated  into 
the  transcript  on  such  appeal.  Should  the  appellee  or  his 
solicitor  desire  additional  portions  of  the  record  incorporated 
into  the  transcript,  he  shall  file  with  the  clerk  of  the  court 
his  precipc  also  within  ten  days  thereafter,  unless  the  time 
shall  be  enlarged  by  the  court  or  a  judge  thereof,  indicating 
such  additional  portions  of  the  record  desired  by  him. 

"  (b)  The  evidence  to  be  included  in  the  record  shall  not 
be  set  forth  in  full,  but  shall  be  stated  in  simple  and  con- 
densed form,  all  parts  not  essential  to  the  decision  of  the 
questions  presented  by  the  appeal  being  omitted  and  the  testi- 
mony of  witnesses  being  stated  only  in  narrative  form,  save 
that  if  either  party  desires  it,  and  the  court  or  judge  so  directs, 
any  part  of  the  testimony  shall  be  reproduced  in  the  exact 
words  of  the  witness.  The  duty  of  so  condensing  and  stating 
the  evidence  shall  rest  primarily  on  the  appellant,  who  shall 
prepare  his  statement  thereof  and  lodge  the  same  in  the  clerk 's 
office  for  the  examination  of  the  other  parties  at  or  before  the 
time  of  filing  his  precipe  under  paragraph  (a)  of  this  rule. 
He  shall  also  notify  the  other  parties  or  their  solicitors  of  such 
lodgment,  and  shall  name  a  time  and  place  when  he  will  ask 
the  court  or  judge  to  approve  the  statement,  the  time  so  named 
to  be  at  least  ten  days  after  such  notice.  At  the  expiration 
of  the  time  named  or  such  further  time  as  the  court  or  judge 
may  allow,  the  statement,  together  with  any  objections  made 
or  amendments  proposed  by  any  party,  shall  be  presented  to 
the  court  or  the  judge,  and  if  the  statement  be  true,  complete 
and  properly  prepared,  it  shall  be  approved  by  the  court  or 
judge,  and  .if  it  be  not  true,  complete  or  properly  prepared, 
it  shall  be  made  so  under  the  direction  of  the  court  or  judge 
and  shall  then  be  approved.  When  approved,  it  shall  be  filed 
in  the  clerk's  office  and  become  a  part  of  the  record  for  the 
purposes  of  the  appeal. 


§  1671,  Ch.  75        MANUAL  OF  FEDERAL  PROCEDURE.  GIG 

"  (c)  If  any  difference  arise  between  the  parties  concern- 
ing directions  as  to  the  general  contents  of  the  record  to  be 
prepared  on  the  appeal,  such  difference  shall  be  submitted 
to  the  court  or  judge  in  conformity  with  the  provisions  of 
paragraph  (b)  of  this  rule  and  shall  be  covered  by  the  direc- 
tions which  the  court  or  judge  may  give  on  the  subject." 
(3  U.  S.  Comp.  Stats.  1916,  p.  2527;  Foster's  Federal  Prac- 
tice, 5th  ed.,  §704,  p.  2499;  Simkins'  Federal  Equity  Suit,  3d 
ed.,  (a),  pp.  707,  708,  (b)  p.  708,  (c)  p.  708.) 

Equity  Rule  76.  "In  preparing  the  transcript  on  an  ap- 
peal, especial  care  shall  be  taken  'to  avoid  the  inclusion  of 
more  than  one  copy  of  the  same  paper  and  to  exclude  the 
formal  and  immaterial  parts  of  all  exhibits,  documents  and 
other  papers  included  therein;  and  for  any  infraction  of  this 
or  any  kindred  rule  the  appellate  court  may  withhold  or  im- 
pose costs  as  the  circumstances  of  the  case  and  the  discourage- 
ment of  like  infractions  in  the  future  may  require.  Costs  for 
such  an  infraction  may  be  imposed  upon  offending  solicitors  as 
well  as  parties.' 

"If,  in  the  transcript,  anything  material  to  either  party 
be  omitted  by  accident  or  error,  the  appellate  court,  on  a 
proper  suggestion  or  its  own  motion,  may  direct  that  the  omis- 
sion be  corrected  by  a  supplemental  transcript."  (3  U.  S. 
Comp.  Stats.  1916,  §  1536,  p.  2529.) 

Equity  Rule  77.  "When  the  questions  presented  by  an 
.appeal  can  be  determined  by  the  appellate  court  without  an 
examination  of  all  the  pleadings  and  evidence,  the  parties, 
with  the  approval  of  the  district  court  or  the  judge  thereof, 
may  prepare  and  sign  a  statement  of  the  case  showing  how 
the  questions  arose  and  were  decided  in  the  district  court  and 
setting  forth  so  much  only  of  the  facts  alleged  and  proved, 
or  sought  to  be  proved,  as  is  essential  to  a  decision  of  such 
questions  by  the  appellate  court.  Such  statement,  when  filed 
in  the  office  of  the.  clerk  of  the  district  court,  shall  be  treated 
as  superseding,  for  the  purposes  of  the  appeal,  all  parts  of 
the  record  other  than  the  decree  from  which  the  appeal  is 
taken,  and,  together  with  such  decree,  shall  be  copied  and 
certified  to  the  appellate  court  as  the  record  on  appeal."  (3 
U.  S.  Comp.  Stats.  1916,  §'1536,  p.  2529.) 


617  APPEAL  AND  ERROR.  Ch.  75,  §  1671 

Construction  ~by  Circuit  Court  of  Appeals. — Per  Curiam. 

"Motions  recently  decided  and  others  now  pending  involv- 
ing these  rules  justify  a  formal  statement  of  our  conclusions. 

"Rule  75  fixes  no  time  within  which  the  statement  of  evi- 
dence must  be  settled  and  filed  in  order  to  '  become  a  part  of 
the  record  for  the  purposes  of  the  appeal.'  Undoubtedly,  the 
better  practice  is  to  complete  this  step  before  claiming,  or,  at 
least,  before  perfecting  the  appeal,  and  if  the  term  expires 
before  the  final  statement  of  evidence  is  filed,  to  enter  an  order 
carrying  this  matter  into  the  next  term:  but  where  appeals 
are  required  within  thirty  days,  or  even  within  ten  days,  the 
time  may  be  wholly  insufficient  to  perfect  the  record  in  this 
respect,  and  the  expiration  of  the  term  may  very  commonly 
be  forgotten,  particularly  as  it  has  never  been  a  matter  of 
importance  in  equity  appeals.  It  is  said  that  the  completing 
of  this  statement  of  evidence  corresponds  to  the  settling  of  a 
bill  of  exceptions  at  law,  and  the  familiar  rule  is  invoked  that 
a  purported  bill  of  exceptions  which  was  not  settled  within 
the  trial  term  or  pursuant  to  a  reservation  during  the  trial 
term  is  a  nullity  and  will  be  stricken  from  the  record.  We 
are  not  satisfied  that  the  analogy  is  close  enough  to  justify 
the  incorporation  of  this  harsh  rule  into  the  practice  pursuant 
to  Rule  75,  which  must  have  been  adopted  with  due  considera- 
tion of  the  existing  practice  by  which  appeals  were  claimed 
and  perfected  regardless  of  the  expiration  of  terms;  and  we 
conclude  that  the  trial  court  has  power  to  approve  and  direct 
the  filing  of  the  statement  of  evidence,  although  the  term  has 
expired  when  the  decree  was  rendered,  and  although  no  order 
was  entered  carrying  the  subject  matter  over  until  the  next 
term. 

"The  same  general  view  leads  also  to  the  conclusion  that 
the  perfecting  of  an  appeal  by  the  approval  of  a'  bond  and 
the  signing  of  citation  does  not  deprive  the  trial  court  of  juris- 
diction to  settle  the  evidence.  It  is  true  that  for  general  pur- 
poses, jurisdiction  over  the  cause  is  thereby  ended,  and  that 
the  shaping  of  this  statement  of  evidence  involves  the  decision 
by  the  judge  of  disputed  claims;  but,  upon  the  whole,  the 
proceeding  is  rather  ministerial,  and  it  sufficiently  pertains 
to  the  making  of  the  return  to  the  appeal,  so  that  we  think 
a  statement  of  evidence  so  approved  and  filed  cannot,  for 
that  reason  alone,  be  stricken  from  the  record. 


§  1671,  Ch.  75  MANUAL  OP  FEDERAL  PROCEDURE.  613 

"Instances  occur  where  Rule  75  is  wholly  disregarded,  and 
the  return  to  the  appeal  includes  the  evidence  in  full,  in 
accordance  with  the  old  practice,  and  we  are  asked  to  dismiss 
appeals  where  the  record  is  so  made  up,  or  to  strike  out  the 
statement  of  evidence,  thereby  leading  to  an  affirmance.  To 
send  the  record  back  for  correction  in  this  respect  involves 
delay  and  the  exercise  of  uncertain  power;  while  to  dismiss 
the  appeal  or  to  strike  all  the  evidence  from  the  record  may 
cause  the  loss  of  substantial  rights  through  the  blunder  in 
practice  by  counsel.  This  drastic  remedy  may  prove  to  be 
necessary  in  some  cases,  but  we  are  reluctant  to  apply  it  now. 
The  enforcement  of  both  rules  rests,  primarily,  upon  the  dis- 
trict judges,  whose  obligation  we  pointed  out  in  Pittsburgh, 
C.  C.  &  St.  L.  R.  Co.  v.  Glinn,  208  Fed.  989,  126  C.  C.  A.  77, 
and  we  have  no  doubt  that  they  will  observe  the  new  practice 
when  approving  a  statement  of  evidence  or  bill  of  exceptions ; 
but  in  equity  appeals,  if  counsel  overlook  the  rule  and  follow 
the  old  practice,  the  matter  may  not  come  to  the  attention 
of  the  trial  judge.  If  such  cases  occur,  the  clerk  who  makes 
•return  to  the  appeal  should  not  include  the  evidence  in  full, 
and  his  due  attention  will  usually  prevent  informality  in  this 
respect.  In  those  instances,  however,  where  the  record  reaches 
this  court  containing  the  evidence  in  full,  we  think  general 
Equity  Rule  76  provides  a  remedy  which,  at  least  during  the 
transition  in  the  general  practice,  will  be  sufficient.  The 
reference  in  Rule  76  to  'any  kindred  rule'  quite  clearly  ap- 
plied to  Rule  75.  It  is  true  that  the  offending  solicitor  in 
this  situation  is  the  solicitor  for  appellant,  and  that  appel- 
lant pays,  in  the  first  instance,  the  entire  cost  of  printing,  so 
that  if  he  is  unsuccessful  in  this  court,  no  disposition  of  the 
costs  of  printing  can  operate  as  a  penalty,  but  if  he  is  success- 
ful, he  can  be  denied  the  recovery  of  such  costs  ;j,and  the  fur- 
ther affirmative  costs,  contemplated  by  Rule  76,  might,  in  a 
proper  case,  be  imposed  upon  the  offending  solicitors."  (222 
Fed.  884  et  seq. ;  3  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2528.) 

As  to  Narrative  Form  of  Statement. 

In  United  States  v.  Motion  Picture  Patents  Co.,  230  Fed.  541, 
the  court  held  that  the  district  court  could  not  approve  a  tran- 
script of  the  record  for  transmission  to  the  Supreme  Court  with- 


619  APPEAL  AND  ERROR.  Ch.  75,  §  1671 

out  the  statement  in  narrative  form  required  by  Rule  75,  unless 
leave  to  omit  such  statement  was  obtained  from  the  Supreme  Court, 
as  it  would  be  an  evasion  of  the  duty  imposed  on  the  district  court 
to  apply  the  exception  contained  in  the  rule  as  to  setting  forth 
parts  of  the  testimony  in  full  to  the  whole  testimony. 

See,  also,  Louisville  &  N.  R.  Co.  v.  United  States,  238  U.  S.  1, 
10,  59  L.  Ed.  1177,  1180,  35  Sup.  Ct.  696. 

Deportation  Proceedings. 

On  an  appeal  in  deportation  proceedings  the  evidence  should 
be  brought  up  by  a  certificate  of  the  evidence  under  Equity  Rule 
75,  rather  than  by  a  common-law  bill  of  exceptions.  (Wong  Keow 
v.  United  States  (7th  Cir.),  215  Fed.  95,  131  C.  C.  A.  403.) 

Illustration  of  Statement  of  Evidence  Under  Rule  To. 

United  States   District    Court,    Southern    District    of    California,   Southern 

Division. 

In  Equity — No.  . 

K.  Company, 

Plaintiff, 

v.  ^-  STATEMENT  or  EVIDENCE  UNDER  EQUITY  RULE  75. 

Frank  Doe  et  al., 

Defendants. 

Plaintiff  offered  in  evidence  copy  of  letters  patent  No.  ,  dated  , 

19—,  as  "Plaintiff's  Exhibit  1." 

It  was  stipulated  that  plaintiff  was  and  is  a  corporation  as  alleged  in  the 
bill  of  complaint. 

Testimony  of  K.,  for  Plaintiff. 

K.,  called  on  behalf  of  plaintiff,  duly  sworn,  testifies: 

I  am  38  years  of  age,  reside  in  ,  Cal.,  and  a  manufacturer  of  irriga- 
tion appliances  for  sixteen  years  past;  I  am  the  inventor  named  in  "Plain- 
tiff's Exhibit  1"  [etc.]. 

This  making  of  cement  joints  is  not  a  new  thing,  no,  not  very  new;  I  have 
been  at  it  for  the  last  ten  years. 

As  to  the  holding  power  of  cement  on  iron  for  ordinary  pressure,  it  is  all 
right;  it  is  good;  we  made  cement  joints  eight  or  nine  years  ago,  and  they  are 
still  in  the  ground  yet. 


§  1672,  Ch.  75        MANUAL  OF  FEDERAL  PROCEDURE.  620 

On  Cross-examination. 

On  our  cast-iron  pipe  ends  there  is  generally  a  bead,  and  the  other  end  is  a 
bell  and  spigot  end.  There  is  what  we  call  a  "lead  lock."  Inside  the  bell  there 
is  a  sort  of  groove  running  around  on  the  inside  of  the  bell,  a  groove  that  lead 
will  run  into.  I  cannot  remember  any  particular  place  within  the  last  eight  or 
ten  years  where  this  construction  was  used  [etc.]. 

Q.  Did  you  ever  put  a  valve  with  a  flange  shape  like  that  on  the  end  of  a 
pipe?  [Indicating  device.] 

A.  How  do  you  mean?     This  would  be  on  the  valve,  do  you  meant 

Q.  Yes,  put  your  pipe  on  the  inside  here,  have  a  flange  in  this  shape. 

A.  No,  I  never  did. 

Q.  Would  you  think  that  would  hold  if  it  were  placed  on  the  end  of  a  pipe 
and  filled  in  with  cement  here  a  half  an  inch  thick? 

Q.   (By  the  Court.)     Do  you  think  it  would  hold  under  pressure? 

A.  Well,  your  Honor,  it  would  depend  how  much  pressure  would  be  on  that, 
pipe.  There  is  an  awful  short  space  there  for  material  to  hold  there.  .  .  . 

§  1672.  Printing  and  Filing1  of  Record  on  Appeal  and  Error  to 
Circuit  Courts  of  Appeal. 

Paragraph  1,  Act.  Feb.  13,  1911,  c.  147.  "That  in  any 
cause  or  proceeding  wherein  the  final  judgment  or  decree  is 
sought  to  be  reviewed  on  appeal  to,  or  writ  of  error  from,  a 
United  States  circuit  court  of  appeals  the  appellant  or  plain- 
tiff in  error  shall  cause  to  be  printed  under  such  rules  as 
the  lower  court  shall  prescribe,  and  shall  file  in  the  office 
of  the  clerk  of  such  circuit  court  of  appeals  at  least  twenty 
days  before  the  case  is  called  for  argument  therein,  at  least 
twenty-five  printed  transcripts  of  the  record  of  the  lower 
court,  and  of  such  part  or  abstract  of  the  proofs  as  the  rules 
of  such  circuit  court  of  appeals  may  require,  and  in  such 
form  as  the  Supreme  Court  of  the  United  States  shall  by 
rule  prescribe,  one  of  which  printed  transcripts  shall  be  cer- 
tified under  the  hand  of  the  clerk  of  the  lower  court  and 
under  the  seal .  thereof,  and  shall  furnish  three  copies  of 
such  printed  transcript  to  the  adverse  party  at  least  twenty 
days  before  such  argument:  Provided,  That  either  the  court 
below  or  the  circuit  court  of  appeals  may  order  any  original 
document  or  other  evidence  to  be  sent  up  in  addition  to  the 
printed  copies  of  the  record  or  in  lieu  of  printed  copies  of 
a  part  thereof;  and  no  written  or  typewritten  transcript  of 
the  .record  shall  be  required."  (6  Fed.  Stats.  Ann.,  2d  ed., 
p.  180;  3  U.  S.  Comp.  Stats.  1916,  §1656.) 


621  APPEAL  AND  EEROR.     Ch.  75,  §§  1673-1674 

§  1673.  Printing  and  Filing  of  Record  on  Appeal  and  Error 
to  Supreme  Court — Use  of  Record  in  Circuit  Court  of  Appeals  as 
Part  of  Transcript. 

Paragraph  2,  Act  Feb.  13,  1911,  c.  47.  "That  in  any  cause 
or  proceeding  wherein  the  final  judgment  or  decree  is 
sought  to  be  reviewed  on  appeal  to  or  by  writ  of  error  or 
of  certiorari  from  the  Supreme  Court  of  the  United  States, 
in  which  the  record  has  been  printed  and  used  upon  the 
hearing  in  the  court  below  and  which  substantially  conforms 
to  the  printed  record  in  said  Supreme  Court,  if  there  have 
been  at  the  time  of  filing  the  record  in  the  court  below  twenty- 
five  copies  of  said  printed  record,  in  addition  to  those  pro- 
vided in  the  preceding  section,  lodged  with  the  clerk  of  the 
court  below,  one  copy  thereof  shall  be  used  by  the  clerk  of 
the  court  below  in  the  preparation  and  as  a  part  of  the  tran- 
script of  the  record  of  the  court  below ;  and  no  fee  shall  be 
allowed  the  clerk  of  the  court  below  in  the  preparation  of 
the  transcript  for  such  part  thereof  as  is  included  in  said 
printed  record  so  lodged  with  him.  And  the  clerk  of  the 
court  below,  in  transmitting  the  transcript  of  record  to  the 
Supreme  Court  of  the  United  States  for  review,  shall  at 
the  same  time  transmit  the  remaining  uncertified  copies  of 
the  printed  record  so  lodged  with  him,  which  shall  be  used 
in  the  preparation  and  as  a  part  of  the  printed  record  in 
the  Supreme  Court  of  the  United  States,  and  the  clerk's 
fee  for  preparing  the  record  for  the  printer,  indexing  the 
same,  supervising  the  printing,  and  binding  and  distributing 
the  copies,  shall  be  at  such  rate  per  folio  thereof,  exclusive 
of  the  printed  record  so  furnished  by  the  clerk  of  the  court 
below,  as  the  Supreme  Court  of  the  United  States  may  from 
time  to  time  by  rule  prescribe ;  and  no  written  or  typewritten 
transcript  of  so  much  of  the  record  as  shall  have  been  printed 
as  herein  provided  shall  be  required."  (36  Stats.  901;  6  Fed. 
Stats.  Ann.,  2d  ed.,  p.  182;  3  U.  S.  Comp.  Stats.  1916,  §  1657.) 

§  1674.  One  Record  Sufficient  When  Both  Parties  Appeal  to 
Supreme  Court  Direct. 

§1013,  Rev.  Stats.  "Where  appeal  is  duly  taken  by  both 
parties  from  the  judgment  or  decree  of  a  circuit  or  district 
court  to  the  Supreme  Court,  a  transcript  of  the  record  filed  in 


§§  1675-1676,  Ch.  75     MANUAL  OP  FEDERAL  PROCEDURE.  622 

the  Supreme  Court  by  either  appellant  may  be  used  on  both 
appeals,  and  both  shall  be  heard  thereon  in  the  same  manner 
as  if  records  had  been  filed  by  the  appellants  in  both  cases." 
(6  Fed.  Stats.  Ann.,  2d  ed.,  p.  180;  3  U.  S.  Comp.  Stats.  1916, 
§  1655.) 

§  1675.    Time  for  Return  of  Appeals  and  Writs  of  Error. 

Supreme  Court  Rule  8,  Subd.  5.  "All  appeals,  writs  of 
error,  and  citations  must  be  made  returnable  not  exceeding 
thirty  days  from  the  day  of  signing  the  citation,  whether  the 
return  day  fall  in  vacation  or  in  term  time,  and  be  served 
before  the  return  day,  except  in  writs  of  error  and  appeals 
from  California,  Oregon,  Nevada,  Washington,  New  Mexico, 
Utah,  Montana,  Arizona,  Wyoming,  North  Dakota,  South 
Dakota,  Alaska,  Idaho,  Hawaii,  and  Porto  Rico,  when  the 
time  shall  be  extended  to  sixty  days,  and  from  the  Philippine 
Islands  to  one  hundred  twenty  days."  (2  U.  S.  Comp.  Stats. 
1916,  p.  1813.) 

C.  C.  A.  Rule  14,  Subd.  5.  "All  appeals,  writs  of  error, 
and  citations  must  be  made  returnable  not  exceeding  thirty 
days  from  the  day  of  signing  the  citation,  whether  the  re- 
turn day  fall  in  vacation  or  in  term  time,  and  be  served 
before  the  return  day."  (2  U.  S.  Comp.  Stats.  1916,  p.  1294.) 

§  1676.    Summary  of  Procedure  on  Appeal  and  Error.    In  all 

appeals,  whether  from  the  district  courts  to  the  circuit  courts  of 
appeal,  or  from  the  district  courts  direct  to  the  Supreme  Court, 
or  from  the  circuit  courts  of  appeal  to  the  Supreme  Court  in  those 
cases  where  such  appeals  may  be  taken,  the  following  steps  must 
be  taken  in  order  to  get  the  record  into  the  appellate  court : 

First.  Except  in  cases  of  appeal  allowed  in  open  court  or  writs 
of  error  taken  and  allowed  in  open  court  at  the  term  during  which 
judgment  was  rendered  at  the  time  when  the  decree  appealed 
from  was  rendered,  a  petition  for  appeal  (or  writ  of  error)  in 
writing  must  be  addressed  to  the  lower  court,  or,  if  in  vacation, 
to  the  judge  thereof. 

Second.  With,  this  petition  there  must  be  filed  an  assignment 
of  errors. 


623  APPEAL  AND  ERROR.  Ch.  75,  §  1 

Third.  The  allowance  of  the  appeal  must  be  indorsed  upon  the 
petition  by  the  justice  or  judge  of  the  lower  court,  or  a  separate 
order  allowing  the  appeal  or  the  order  allowing  the  writ  of  error 
must  be  signed  by  him. 

Fourth.  Before  the  appeal  can  be  perfected  a  satisfactory  bond 
on  appeal  must  be  furnished  by  the  appellant,  which  bond  may  act 
as  a  supersedeas  if  desired.  This  bond  may  be  given  either  at 
the  time  when  the  appeal  is  allowed,  or  within  a  reasonable  time 
thereafter,  and  must  be  approved  by  the  justice  or  judge  allowing 
the  appeal,  and  by  no  one  else.  The  same  applies  to  writs  of 
error. 

Fifth.  The  citation  or  notfce  of  appeal,  in  cases  where  it  is 
required,  must  be  signed  by  the  judge  and  served  upon  the 
appellee.  So,  also,  as  to  allowance  of  the  writ  of  error. 

Sixth.  The  writ  of  error  must  be  issued  either  by  the  clerk  of 
the  district  court,  the  circuit  court  of  appeals,  or  the  Supreme 
Court,  as  the  case  may  be. 

All  of  these  papers  and  proceedings  are  filed  with  the  clerk  of 
the  court;  below,  and  constitute  a  part  of  the  record  on  appeal. 

§  1677.  Review  of  Final  Decisions  of  Circuit  Courts  of 
Appeals  upon  Certiorari. 

Part  §240,  Jud.  Code.  "In  any  case,  civil  or  criminal,  in 
which  the  judgment  or  decree  of  a  circuit  court  of  appeals 
is  made  final  by  the  provisions  of  this  title,  it  shall  be  compe- 
tent for  the  Supreme  Court  to  require,  by  certiorari  or  other- 
wise, upon  the  petition  of  any  party  thereto,  any  such  case 
to  be  certified  to  the  Supreme  Court  for  its  review  and  de- 
termination with  the  same  power  and  authority  in  the  case 
as  if  it  had  been  carried  by  appeal  or  writ  of  error  to  the 
Supreme  Court."  (36  Stats.  1157;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  854;  2  U.  S.  Comp.  Stats.  1916,  §  1217.) 

See,  also,  §  4,  Act  Jan.  28,  1915,  c.  22,  as  amended  §  3,  Act 
Sept.  6,  1916,  c.  448,  38  Stats.  804,  39  Stats.  727,  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  608,  in  note  to  §  128,  Jud.  Code;  2  U.  S.  Comp. 
Stats.  1916,  §  1120a,  pp.  1443,  1444, 


§  1677,  Ch.  75        MANUAL  or  FEDERAL  PROCEDURE.  624 

Instructions  as  to  applications  for  writs  of  certiorari  under  acts 
of  March  3,  1891,  and  Sept.  6,  1916,  by  Honorable  James  D.  Maher, 
Clerk  of  the  Supreme  Court  of  the  United  States,  may  be  found 
in  our  Appendix  immediately  preceding  the  Supreme  Court  Rules. 

The  following  forms  are  suggested : 

[Title  of  Court.] 
[Title  of  Cause.]        PETITION  FOE  WRIT  OP  CERTIORAM. 

To  the  Honorable  the  Supreme  Court  of  the  United  States: 

The  petition  of  respectfully  shows  to  this  honorable  court  [here  state 

facts  and  proceedings  numbered  in  separate  paragraphs  leading  to  and  includ- 
ing the  decree  of  the  circuit  court  of  appeals]. 

A  certified  copy  of  the  entire  record  of  said  case  in  the  said  circuit  court  of 
appeals  is  hereby  furnished,  attached  to  and  made  a  part  of  this  application 
and  marked  exhibit  "A"  in  compliance  with  Rule  37  of  this  honorable  court. 

Your  petitioner  is  advised  and  believes  that  the  said  judgment  of  the  United 
States  circuit  court  of  appeals  in  said  case  is  erroneous,  and  that  this  honorable 
court  should  require  the  said  case  to  be  certified  to  it  for  its  review  and  deter- 
mination in  conformity  with  the  provision  in  §  240,  Judicial  Code,  said  case 
being  made  final  in  said  circuit  court  of  appeals  by  the  provision  in  §  128,  Judi- 
cial Code. 

The  said  ease  was  decided  in  said  circuit  court  of  appeals  [here  set  forth 
argument  advanced  against  the  decision  of  the  circuit  court  of  appeals  and 
the  reasons  why  it  should  be  reviewed  by  the  Supreme  Court]. 

Wherefore  your  petitioner  respectfully  prays  that  a  writ  of  certiorari  may  be 
issued  out  of  and  under  the  seal  of  this  court,  directed  to  the  United  States 

circuit  court  of  appeals  for  the  circuit,  commanding  the  said  court  to 

certify  and  send  to  this  court,  on  a  day  certain  to  be  therein  designated,  a  full 
and  complete  transcript  of  the  record  and  all  proceedings  of  the  said  circuit 

court'  of  appeals  in  the  said  case,  entitled  v.  ,  No.  ,  to  the  end 

that  the  said  case  may  be  reviewed  and  determined  by  this  court  as  provided 
by  section  240,  Judicial  Code,  or  that  your  petitioner  may  have  such  other  or 
further  relief  or  remedy  in  the  premises  as  this  court  may  deem  appropriate 
and  in  conformity  with  said  provision  of  the  Judicial  Code  and  that  the  said 
judgment  of  the  said  circuit  court  of  appeals  in  the  said  case  and  every  part 
thereof  may  be  reversed  by  this  Honorable  Court. 

— -,  Petitioner. 

[Verification.] 


625  APPEAL  AND  ERROR.  Ch.  75,  §  1678 

[Title  of  Court.] 

[Title  of  Cause.]  WRIT  OF'  CERTIORAM. 

United  States  of  America, — ss. 

The  President  of  the  United  States  of  America,  to  the  Honorable  Judges  of 

the  United  States  Circuit  Court  for  the  Circuit,  Greeting: 

Being  informed  that  there  is  now  pending  before  you  a  suit  in  which  

is  appellant  [or  plaintiff  in  error]  and is  appellee  [or  defendant  in  error], 

which  suit  was  removed  to  said  circuit  court  of  appeals  by  virtue  of  an  appeal 

[or  a  writ  of  error]  from  the  district  court  of  the  United  States  for  the 

district  of ;  and  we  being  willing  for  certain  reasons,  that  the  said  cause 

and  the  record  and  proceedings  therein  should  be  certified  by  said  circuit  court 
of  appeals  and  removed  into  the  Supreme  Court  of  the  United  States,  do  hereby 
command  you  that  you  send  without  delay  to  the  said  Supreme  Court,  as  afore- 
said, the  record  and  proceedings  in  said  cause,  so  that  the  said  Supreme  Court 
may  act  thereon  as  of  right  and  according  to  law  ought  to  be  done. 

Witness  the  Honorable  ,  Chief  Justice  of  the  Supreme  Court  of  the 

United  States. 

,  Clerk  of  the  Supreme  Court. 

§  1678.    Certification  by  Circuit  Courts  of  Appeals  to  Supreme 
Court. 

* 

Part  §239,  Jud.  Code.  "In  any  case  within  its  appellate 
jurisdiction  .  .  .  the  circuit  court  of  appeals  at  any  time  may 
certify  to  the  Supreme  Court  of  the  United  States  any  ques- 
tions or  propositions  of  law  concerning  which  it  desires  the 
instruction  of  that  court  for  its  proper  decision;  and  there- 
upon the  Supreme  Court  may  either  give  its  instruction  on 'the 
questions  and  propositions  certified  to  it,  which  shall  be  bind- 
ing upon  the  circuit  court  of  appeals  in  such  case,  or  it  may 
require  that  the  whole  record  and  cause  be  sent  up  to  it  for 
its  consideration,  and  thereupon  shall  decide  the  whole  matter 
in  controversy  in  the  same  manner  as  if  it  had  been  brought 
there  for  review  by  writ  of  error  or  appeal."  (36  Stats.  1157 ; 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  838 ;  2  U.  S.  Comp.  Stats.  1916, 
§1216;  Foster's  Federal  Practice,  5th  ed.,  p.  2378;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  pp.  735,  737.) 

T  -       H 

In  view  of  the  final  clause  of  the  section  above  quoted,  the  only 

difference  in  procedure  upon  a  review  of  this  class  of  cases  is  in 

Manual — 40 


§  1679,  Ch.  75          MANUAL  OF  FEDERAL  PROCEDURE.  626 

the  manner  of  getting  the  questions  before  the  Supreme  Court, 
subsequent  proceedings  being  the  same  as  if  the  cause  had  been 
brought  there  by  writ  of  error  or  appeal. 

The  form  of  the  certificate  is  substantially  as  follows : 

CERTIFICATE  OP  QUESTIONS  BY  CIRCUIT  JUDGES  TO  THE  SUPREME  COURT. 

The  United  States  Circuit  Court  of  Appeals  for  the Circuit. 

[Title  of  Cause.] 

Appeal  from  the  District  Court  of  the  United  States  for  the  District 

of . 

This  cause  coming  on  for  hearing  before  the  court  after  full  argument,  it  is 
ordered,  in  view  of  the  important  questions  arising  with  the  record  and  the 
doubt  which  the  court  has  as  to  the  correct  decision  thereof  that  certain  ques- 
tions shall  be  certified  to  the  Supreme  Court  of  the  United  States  for  its  instruc- 
tion thereon,  that  accompanying  said  question  there  shall  also  be  a  statement 
from  which  such  question  can  be  fully  understood}  which  question  and  the 
statement  accompanying  them  are  as  follows: 

[Questions  and  statements  are  here  set  forth.] 

[To  be  signed  by  all  judges.] 

§  1679.  Appellate  Procedure — District  Courts  of  Alaska  to  the 
Supreme  Court. 

Part  §547,  Jud.  Code.  "Appeals  and  writs  of  error  may 
be  taken  and  prosecuted  from  final  judgments  and  decrees 
.  of  the  district  court  for  the  district  of  Alaska  or  any  division 
thereof,  direct  to  the  Supreme  Court  of  the  United  States  (in 
the  cases  enumerated)  within  the  same  time,  in  the  same 
manner,  and  under  the  same  regulations  as  writs  of  error  and 
appeals  are  taken  from  the  district  court  to  the  Supreme 
Court."  (36  Stats.  1158;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  905; 
2  U.  S.  Comp.  Stats.  1916,  §  1224;  Foster's  Federal  Practice, 
5th  ed.,  pp.  2388,  2437,  2456,  2539.) 

This  procedure  is  included  within  the  first  class  of  appeals 
enumerated  in  §  1650,  supra,  and  the  practice  is  the  same  as  that 
in  appeals  from  district  courts  direct  to  the  United  States  Supreme 
Court,  heretofore  described. 


f)27  APPEAL  AND  ERROR.  Ch.  75,  §  1680 

§  1680.    Appellate  Procedure — Hawaii  and  Porto  Rico. 

§  246,  Jud.  Code,  as  amended  §  2,  Act  Jan.  28,  1915,  c.  22. 
"Writs  of  error  and  appeals  from  the  final  judgments  and 
decrees  of  the  Supreme  Court  of  the  Territory  of  Hawaii  and 
of  the  Supreme  Court  of  Porto  Rico  may  be  taken  and  prose- 
cuted to  the  Supreme  Court  of  the  United  States  within  the 
same  time,  in  the  same  manner,  under  the  same  regulations, 
and  in  the  same  classes  of  cases,  in  which  writs  of  error  and 
appeals  from  the  final  judgments  and  decrees  of  the  highest 
court  of  a  State  in  which  a  decision  in  the  suit  could  be  had, 
may  be  taken  and  prosecuted  to  the  Supreme  Court  of  the 
United  States  under  the  provisions  of  section  two  hundred 
and  thirty-seven;  and  in  all  other  cases,  civil  or  criminal,  in 
the  Supreme  Court  of  the  Territory  of  Hawaii  or  the  Supreme 
Court  of  Porto  Rico,  it  shall  be  competent  for  the  Supreme 
Court  of  the  United  States  to  require  by  certiorari,  upon  the 
petition  of  any  party  thereto,  that  the  case  be  certified  to  it, 
after  final  judgment  or  decree,  for  review  and  determination, 
with  the  same  power  and  authority  as  if  taken  to  that  court 
by  appeal  or  writ  of  error;  but  certiorari  shall  not  be  al- 
lowed in  any  such  case  unless  the  petition  therefor  is  pre- 
sented to  the  Supreme  Court  of  the  United  States  within  six 
months  from  the  date  of  such  judgment  or  decree."  (36  Stats. 
1158,  as  amended  38  Stats.  804;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  900;  2  U.  S.  Comp.  Stats.  1916,  §  1223,  p.  1787.) 

Part  §2,  Act  Jan.  28,  1915,  c.  22.  "Writs  of  error  and 
appeals  from  the  final  judgments  and  decrees  of  the  supreme 
courts  of  the  Territory  of  Hawaii  and  Porto  Rico,  wherein  the 
amount  involved,  exclusive  of  costs,  to  be  ascertained  by  the 
oath  of  either  party  or  of  other  competent  witnesses,  exceeds 
the  value  of  $5,000,  may  be  taken  and  prosecuted  in  the  cir- 
cuit courts  of  appeals."  (38  Stats.  804;  6  Fed.  Stats.  Ann., 
2d  ed.,  p.  145.) 


§  1681,  Ch.  75  MANUAL  OF  FEDERAL  PROCEDURE.  628 

[Title  of  Trial  Court  and  Cause.] 
WRIT  OF  ERROR  TO  THE  SUPRKME  COURT  OF  HAWAII. 
The  United  jStates  of  America, — ss. 

The  President  of  the  United  States  of  America  to  the  Supreme  Court  of  the 

Territory  of  Hawaii,  Greeting: 

Because  in  the  record  and  proceedings  as  also  in  the  rendition  of  the  judg- 
ment and  decree  which  is  in  the  said  supreme  court  of  the  territory  of  Hawaii, 
before  you  or  some  of. you,  being  the  highest  court  of  law  or  equity  of  said 
territory  in  which  a  decision  could  be  had  in  the  said  suit,  where  was  drawn  in 
question  the  validity  of  a  treaty  or  statute  of,  or  an  authority  exercised  under, 
the  United  States  and  the  decision  was  against  their  validity;  [or  here  state 
any  other  Federal  question  involved]  a  manifest  error  has  happened  to  the 

great  damage  of ,  plaintiff  in  error  herein,  as  by  their  assignment  of  errors 

appears,  we  being  willing  that  error,  if  any  there  be,  should  be  duly  corrected, 
and  full  justice  done  to  the  parties  aforesaid  in  this  behalf,  do  command  you 
if  judgment  be  therein  given,  that  then  under  your  seal,  distinctly  and  openly, 
you  send  the  record  and  proceedings  aforesaid,  with  all  things  concerning  the 
same,  to  the  Supreme  Court  of  the  United  States,  so  that  you  have  the  same 
at  Washington  within  thirty  days  from  the  date  hereof  in  the  said  Supreme 
Court  to  be  then  and  there  heard,  that  the  record  and  proceedings  aforesaid 
being  inspected,  the  said  Supreme  Court  may  cause  further  to  be  done  therein 
to  correct'  that  error,  if  any  there  be,  what  of  right  should  be  done  according  to 
the  laws  of  the  United  States. 

Witness  the  Honorable  ,  Chief  Justice  of  the  said  Supreme  Court,  this 

day  of ,  A.  D.  19—. 

) 

Clerk  of  the  Supreme  Court  of  the  Territory  of  Hawaii. 
[Seal  of  the  Supreme  Court,  Title  of  Court  and  Cause.] 
Allowed  by 

~~> 
Chief  Justice  of  the  Supreme  Court  of  the  Territory  of  Hawaii. 

§  1681.  Appellate  Procedure — From  Supreme  Court  of  Phil- 
ippines. 

Part  §248,  Jud.  Code.  "Such  final  judgments  or  decrees 
(of  the  supreme  court  of  the  Philippine  Islands  in  the  cases 
enumerated  in  chapter  39)  may  and  can  be  reviewed,  re- 
versed, modified,  or  affirmed  by  said  supreme  court  on  appeal 
or  writ  of  error  by  the  party  aggrieved  within  the  same  time, 
in  the  same  manner,  under  the  same  regulations,  and  by  the 
same  procedure,  as  far  as  applicable,  as  the  final  judgments 
and  decrees  of  the  district  courts  of  the  United  States." 


629  APPEAL  AND  EHROB.     Ch.  75,  §§  1GS2-1683 

(36  Stats.  1158;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  908;  Foster's 
Federal  Practice,  5th  ed.,  pp.  2391,  2456,  2539.) 

The  procedure  upon  appeal  in  these  cases  also  falls  within  the 
first  classification  enumerated  in  §  1650,  supra. 

§  1682.    Appellate  Procedure — From  District  of  Columbia. 

Part  §250,  Jud.  Code.  "Writs  of  error  and  appeals  (from 
final  judgments  or  decrees  of  the  court  of  appeals  of  the 
District  of  Columbia  in  the  cases  enumerated  and  discussed 
in  §  2018  of  chapter  39)  shall  be  taken  within  the  same  time, 
.in  the  same  manner,  and  under  the  same  regulation,  as  writs 
of  error  and  appeals  are  taken  from  the  circuit  courts  of 
appeals  to  the  Supreme  Court  of  the  United  States."  (36 
Stats.  1159 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  913 ;  2  U.  S.  Comp. 
Stats.  1916,  §1227;  Foster's  Federal  Practice,  5th  ed., 
pp.  1382,  1519,  2387,  2436,  2439,  2457.) 

Appellate  procedure  in  the  cases  covered  by  this  section  falls 
within  the  third  class  of  appeals  enumerated  in  §  1650,  supra,  and 
the  discussion  of  that  class  of  appeals  applies  to  appellate  proce- 
dure under  this  section. 

§  1683.  Appellate  Procedure — From  District  of  Columbia, 
Where  Decision  of  Circuit  Court  of  Appeals  is  Otherwise  Final. 

§  251,  Jud.  Code.  "In  any  case  in  which  the  judgment  or 
decree  of  said  court  of  appeals  is  made  final  by  the  section 
last  preceding,  it  shall  be  competent  for  the  Supreme  Court 
of  the  United  States  to  require,  by  certiorari  or  otherwise, 
any  such  case  to  be  certified  to  it  for  its  review  and  determina- 
tion with  the  same  power  and  authority  in  the  case  as  if  it  had 
been  carried  by  writ  of  error  or  appeal  to  said  Supreme  Court. 
It  shall  also  be  competent  for  said  court  of  appeals,  in  any 
case  in  which  its  judgment  or  decree 'is  made  final  under  the 
section  last  preceding,  at  any  time  to  certify  to  the  Supreme 
Court  of  the  United  Slates  any  questions  or  propositions  of 
law  concerning  which  it  desires  the  instruction  of  that  court 
for  its  proper  decision;  and  thereupon  the  Supreme  Court 
may  either  give  its  instruction  on  the  question  and  proposi- 
tions certified  to  it,  which  shall  be  binding  upon  said  court 


§  1684,  Ch.  75        MANUAL  OP  FEDERAL,  PROCEDURE.  630 

o£  appeals  in  such  case,  or  it  may  require  that  the  whole 
record  and  cause  be  sent  up  to  it  for  its  consideration,  and 
thereupon  shall  decide  the  whole  matter  in  controversy  in  the 
same  manner  as  if  it  had  been  brought  there  for  review  by 
writ  of  error  or  appeal."  (36  Stats.  1159 ;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  917;  2  U.  S.  Comp.  Stats.  1916,  §1228;  Foster's 
Federal  Practice,  5th  ed.,  pp.  1520,  2379,  2387.) 

The  language  of  this  section  is  substantially  the  same  as  that 
of  §§  239  and  240,  Judicial  Code,  which  apply  to  appeals  from 
circuit  courts  of  appeals  of  the  various  circuits  to  the  Supreme 
Court,  and  the  procedure  under  the  above-quoted  section  is  the 
same  as  that  discussed  under  §§  239,  240,  Judicial  Code  in  §§  1677, 
1678,  supra. 

§  1684.  Certiorari  Ninth  Circuit  to  Supreme  Court  in  Alaska 
Cases. 

Part  §  134,  Jud.  Code  (Drawn  from  §  202  of  the  Criminal 
Code  of  Alaska,  and  §§  504  and  505  of  the  Civil  Code  of 
Alaska).  "Whenever  such  circuit  court  of  appeals  (for  the 
ninth  circuit)  may  desire  the  instruction  of  the  Supreme 
Court  of  the  United  States  upon  any  question  or  proposition 
of  law  which  shall  have  arisen  in  any  such  case,  the  court  may 
certify  such  question  or  proposition  to  the  Supreme  Court, 
and  thereupon  the  Supreme  Court  shall  give  its  instruction 
upon  the  question  or  proposition  certified  to  it,  and  its  instruc- 
tion shall  be  binding  upon  the  circuit  court  of  appeals." 
(36  Stats.  1134;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  644;  2  U.  S. 
Comp.  Stats.  1916,  §1125;  Foster's  Federal  Practice,  5th  ed., 

pp.  2411,  2437,  2539.) 

i 

The  cases  covered  by  this  section  are  those  in  which  appeals 
may  be  taken  from  district  courts  of  Alaska  to  the  circuit  court 
of  appeals  for  the  ninth  circuit,  the  decision  of  said  circuit  court 
of  appeals  being  final  except  for  the  review  by  the  Supreme  Court 
as  above  provided.  The  language  of  the  section  is  similar  to  that 
of  §  239,  Judicial  Code,  which  provides  for  like  procedure  in  all 
cases  decided  by  the  circuit  courts  of  appeals  of  the  various  cir- 
cuits, in  which  their  judgments  are  otherwise  final,  and  the  effect 


631  APPEAL  AND  ERROR.    Ch.  75,  §§  1685-1687 

of  the  section  above  quoted  is  to  provide  the  same  procedure  in 
this  class  of  appeals  from  the  district  courts  of  Alaska,  as  is  pro- 
vided by  §  239,  Judicial  Code,  in  parallel  appeals  from  district 
courts  of  the  United  States. 

§  1685.    Procedure  After  Transcript  Reaches  Appellate  Court. 

Part  Sup.  Ct.  Rule  8,  and  Cir.  Ct.  App.  Rule  14.  "No  case 
will  be  heard  until  a  complete  record  containing  in  itself,  and 
not  by  reference,  all  the  papers,  exhibits,  depositions,  and 
other  proceedings  which  are  necessary  to  the  hearing  in  this 
court,  shall  be  filed."  (2  U.  S.  Comp.  Stats.  1916,  §  1232, 
p.  1813.) 

This  rule  having  been  complied  with  the  cause  is  docketed, 
heard,  and  decided  in  accordance  with  the  rules  of  the  particular 
appellate  court  to  which  the  cause  has  been  taken.  It  is  not  prac- 
ticable in  a  manual  of  this  size  to  here  set  forth  at  length  the  pro- 
visions of  all  these  rules.  They  are  contained  in  the  Appendix, 
and  to  them  the  practitioner  must  refer  for  information  as  to 
docketing,  printing,  and  filing  of  brief,  time  for  argument,  and  all 
the  details  relating  to  the  conduct  of  the  appeal  before  the  appellate 
tribunal. 

§  1686.    No  Reversal  for  Error  in  Fact. 

§1011,  Rev.  Stats.  "There  shall  be  no  reversal  in  the 
Supreme  Court  or  in  a  circuit  court  upon  a  writ  of  error,  for 
error  in  ruling  any  plea  in  abatement,  other  than  a  plea  to  the 
jurisdiction  of  the  court,  or  for  any  error  in  fact."  (6  Fed. 
Stats.  Ann.,  2d  ed.,  p.  230;  3  U.  S.  Comp.  Stats.  1916,  §  1672.) 

§  1687.    Damages  and  Costs  on  Error. 

§  1010,  Rev.  Stats.,  Com-p.  Stats.  1901,  p.  715,  4  F.  S.  A. 
623.  "Where,  upon  writ  of  error,  judgment  is  affirmed  in  the 
Supreme  Court  or  a  circuit  court,  the  court  shall  adjudge  to 
the  respondent  in  error  just  damages  for  his  delay,  and  single 
or  double  costs  at  its  discretion."  (6  Fed.  Stats.  Ann.,  2d  ed., 
p.  228  j  3  U,  S,  Comp.  Stats.  1916,  §  1671.) 


§  1688,  Ch.  75        MANUAL  OF  FEDERAL  PROCEDURE.  632 

§  1688.  Dismissal  of  Appeal.  Under  the  rules  of  the  Supreme 
Court  and  the  circuit  courts  of  appeals,  the  appellee  may  secure 
the  dismissal  of  an  appeal  upon  any  of  the  following  grounds: 

1.  Transcript  not  properly  filed  or  cause  not  docketed  before 
return  day  named  in  citation.     (Sup.  Ct.  Rule  9,  C.  C.  A.  Rule  16.) 

2.  Record  not  printed  in  time.     (Sup.  Ct.  Rule  10,  C.  C.  A.  Rule 
23.) 

3.  Nonappearance  of  counsel  for  appellant  or  failure  to  file 
brief.     (Sup.  Ct.  Rule  16,  C.  C.  A.  Rule  22.) 

4.  Appearance  not  entered  when  case  calls.     (Sup.  Ct.  Rule  18, 
C.  C.  A.  Rule  22.) 

5.  Requisite  numbers  of  copies  of  brief  not  filed,  or  not  filed  in 
time.     (Sup.  Ct.  Rule  21,  C.  C.  A.  Rule  24.) 

6.  By  stipulation  filed  with  clerk  in  vacation.     (Sup.  Ct.  Rule 
28,  C.  C.  A.  Rule  20.) 

7.  Neither  party  prepared  to  argue  cause  upon  second  call  when 
called  at  two  successive  terms.     (Sup.  Ct.  Rule  19.) 

8.  Failure  of  deceased   appellants,   representatives  to   appear. 
(C.  C.  A.  Rule  19.) 

In  addition  to  the  above-named  grounds  prescribed  by  the  rules, 
the  following,  held  by  the  courts  sufficient  to  warrant  dismissal, 
have  been  gathered  together  and  set  forth  in  Simkins'  "A  Federal 
Equity  Suit"  (3d  ed.),  chapter  CIX,  p.  720. 

9.  Appellant  may  dismiss  by  leave  of  court.     (United  States  v. 
Griffith,  141  U.  S.  212,  35  L.  Ed.  719,  11  Sup.  Ct.  1005.) 

10.  When    it    appears    that    further    prosecution    is    collusive. 
(Mills  v.  Green,  159  U.  S.  654,  40  L.  Ed.  293,  16  Sup.  Ct.  132 ; 
Benner  v.  Hayes,  80  Fed.  953,  26  C.  C.  A.  271 ;  Weaver  v.  Kelley, 
92  Fed.  421,  34  C.  C.  A.  423.) 

11.  When  there  is  no  material  issue.     (Allen  v.  Georgia,   166 
U.  S.  140,  41  L.  Ed.  949,  17  Sup.  Ct.  525.) 

12.  When  the  question  is  moot,  or  some  abstract  proposition. 
(Kimball  v.  Kimball,  174  U.  S.  158,  43  L.  Ed.  932,  19  Sup.  Ct.  639 ; 
United  States  v.  Evans,  213  U.  S.  297,  53  L.  Ed.  803.  29  Sup.  Ct. 
507;  Mills  v.  Green,  159  U.  S.  653,  40  L.  Ed.  293,  16  Sup.  Ct.  132.) 


633  APPEAL  AND  ERROR.  Ch.  75,  §  1688 

13.  Where  relief  becomes  impossible.     (Mills  v.  Green,  159  U.  S. 
653,  40  L.  Ed.  293,  16  Sup.  Gt.  132;  Flour  Inspectors  v.  Glover, 
160  U.  S.  170,  40  L.  Ed.  382,  16  Snp.  Ct.  321 ;  Katz  v.  San  Antonio. 
91  Fed.  567,  34  C.  C.  A.  10,  63  U.  S.  App.  452;  Gamewell  Fire 
Alarm  Tel.  Co.  v.  Municipal  Signal  Co.,  77  Fed.  492,  23  C.  C.  A. 
250,  33  U.  S.  App.  714;  Lockwood  v.  Wickes,  75  Fed.   118,  21 
C.  C.  A.  257,  36  U.  S.  App.  321,  40  U.  S.  App.  136,  as  when  stat- 
utes repealed.    Flour  Inspectors  v.  Glover,  160  U.  S.  170,  40  L.  Ed. 
382,  16  Sup.  Ct.  321 ;  Board  of  Flour  Inspectors  v.  Glover,  161  U.  S. 
103,  40  L.  Ed.  632,  16  Sup.  Ct.  492.) 

14.  An  appeal  will  be  dismissed  if  no  citation  is  sued  out,  or 
sued  out  and  not  served,  but  the  regular  appearance  of  appellee 
waives  it.     (Peace  River  Phosphate  Co.  v.  Edwards,  70  Fed.  728, 
17  C.  C.  A.  359,  30  U.  S.  App.  513 ;  Freeman  v.  Clay,  48  Fed.  849, 
1  C.  C.  A.  115,  2  U.  S.  App.  151.) 

15.  An  appeal  will  be  dismissed  when  based  on  grounds  affect- 
ing the  jurisdiction  of  the  court  a  quo,  or  the  jurisdiction  of  the 
appellate  court,  as  when  the  appeal  was  not  sued  out  within  the 
time  limited.     (Gorman  Wright  Co.  v.  Wright,  134  Fed.  363-365, 
67  C.  C.  A.  345 ;  Great  Southern  Fire  Proof  Hotel  Co.  v.  Jones,  177 
U.  S.  449-453,  44  L.  Ed.  842-844,  20  Sup.  Ct.  690;  Waxahachie  v. 
Coler,  92  Fed.  284,  34  C.  C.  A.  349.) 

16.  When  decree  joint,  and  appeal  by  one  without  notice  to 
others.     (Fitzpatrick  v.  Graham,  119  Fed.  353,  56  C.  C.  A.  95,  and 
cases  cited.) 

17.  When  no  assignment  of  errors  or  brief.     (Moline  Trust  & 
Sav.  Bank  v.  Wylie,  149  Fed.  734,  79  C.  C.  A.  440;  Fitch  v.  Rich- 
ardson, 147  Fed.  196,  77  C.  C.  A.  422.) 

To  procure  the  dismissal  of  an  appeal,  a  written  motion  must 
be  prepared  and  filed,  and  notice  given  in  accordance  with  Supreme 
Court  Rule  6,  §  3,  and  Circuit  Court  of  Appeals  Rule  21,  §  3. 

The  motion  may  be  in  the  following  form: 


§  1689,  Ch.  75  MANUAL  OP  FEDERAL  PROCEDURE.  634 

[Title  of  Court  and  Cause.] 

MOTION  TO  DISMISS. 

The  appellee  moves  the  court  to  dismiss  the  appeal  filed  herein  for  the  follow- 
ing reasons: 

1.  Because,  etc.  [setting  forth  the  facts  upon  which  the  motion  is  based]. 

,  Solicitor. 

The  appellant  must  receive  notice  of  the  motion,  which  may  be 
served  in  the  following  form : 
[Title  of  Court  and  Cause.] 

To ,  Appellant,  and ,  His  Counsel: 

Please  take  notice  that  the  appellee  will,  on  the day  of ,  19 — ,  or  as 

soon  thereafter  as  counsel  can  be  heard,  submit  to  the  above-entitled  court  at 
— ,  his  motion  to  dismiss  the  appeal  now  pending  in  this  cause,  a  copy  of 
which  is  attached  to  this  notice. 

• ,  Solicitor. 

§  1689.  Diminution  of  Record.  If  the  transcript  is  incomplete 
or  defective,  the  proper  practice  is  a  suggestion  of  diminution 
;of  the  record,  which  is  done  by  motion  or  petition  in  writing  in 
the  appellate  court. 

Supreme  Court  Rule  14,  C.  C.  A.  Rule  18.  "No  certiorari 
for  diminution  of  the  record  will  be  hereafter  awarded  in  any 
case,  unless  a  motion  therefor  shall  be  made  in  writing,  and 
the  facts  on  which  the  same  is  founded  shall,  if  not  admitted 
by  the  other  party,  be  verified  by  affidavit.  And  all  motions 
for  such  certiorari  must  be  made  at  the  first  term  of  the  entry 
of  the  case;  otherwise,  the  same  will  not  be  granted,  unless 
upon  special  cause  shown  to  the  court,  accounting  satisfac- 
torily for  the  delay."  (2  U.  S.  Comp.  Stats.  1916,  §  1232. 
p.  1821.) 

The  petition  may  be,  substantially,  as  follows:  (M.  K.  &  T.  Ry. 
Co.  v.  Dinsmore,  108  U.  S.  30,  27  L.  Ed.  640,  2  Sup.  Ct.  9)  : 


635  APPEAL  AND  ERROR.          Ch.  75,  §  1690 

, 
[Title  of  Court  and  Cause.] 

PETITION  FOB  CERTIORARI  FOR  DIMINUTION  OF  RECORDS. 

To  the  Honorable  Justices  of  the  Supreme  Court  of  the  United  States: 

The  petition  of  respectfully  shows  to  this  honorable  court  as  follows 

[here  set  forth  the  failure  of  the  clerk  in  the  lower  court  to  incorporate  in  the 
record  those  proceedings  for  ths  lack  of  which  the  diminution  is  suggested,  or 
whatever  the  circumstances  are,  which  are  responsible  for  the  diminution]  : 

Wherefore  your  petitioner  prays  that  a  writ  of  certiorari  may  be  issucil 
out  of  and  under  the  seal  of  this  court,  directed  to  the  United  States  circuit 

court  of  appeals  for  the  circuit  [or  whatever  court  the  appeal  may  have 

been  taken  from],  commanding  the  said  court  to  certify  and  send  to  this  court 
on  a  day  certain  to  be  therein  designated,  a  full  and  complete  transcript  of  all 
and  every  part  of  the  record  and  proceedings  of  the  said  court  in  the  said  ease 

therein  entitled,  v.  ,  No.  ,  remaining  on  file  in  the  office  of  the 

clerk  of  the  said  court,  and  not  embodied  in  the  transcript  on  appeal  in  the 
said  cause  already  filed  in  this  court  [or  specify  what  parts  of  the  record  it  is 
desired  to  have  sent  up]. 

,  Petitioner. 

It  seems  that  the  motion  or  petition  must  be  verified,  unless  the 
facts  therein  stated  are  admitted.  (Chappell  v.  United  States,  160 
U.  S.  499,  40  L.  Ed.  510,  16  Sup.  Ct.  397.) 

§  1690.  Mandate.  Mandate  is  the  command  of  the  appellate 
court,  directing  the  lower  court  in  its  disposition  of  a  cause  after 
its  determination  upon  appeal  or  writ  of  error. 

It  is  issued  by  the  clerk  of  the  appellate  court,  in  accordance 
with  the  rules  of  that  court  (C.  C.  A.  Rule  32,  Supreme  Ct.  Rule 
24,  §5,  and  Rule  39,  Appendix,  post),  and  in  form  substantially 
as  follows: 
[Title  of  Court  and  Cause.] 

WRIT  or  MANDATE  TO  DISTRICT  COURT  ON  REVERSAL. 
United  States  of  America, — ss. 

The  President  of  the  United  States  of  America,  to  the  Honorable  Judges  of 

the  District  Court  of  the  United  States  for  the  District  of  : 

Greeting. 

[Seal  of  the  U.  S.  Supreme  Court.] 

Whereas,  lately  in  the  district  court  of  the  United  States  for  the district 

of ,  before  you,  or  some  of  you,  in  a  cause  between ,  appellant,  and 

appellee,  wherein  the  decree  of  such  district  court  entered  in  said  cause 

on  the ,  day  of ,  19 — ,  is  in  the  following  words,  yis: 


§  1690,  Ch.  75        MANUAL  OP  FEDERAL  PROCEDURE.  636 

[Here  set  forth  the  decree  verbatim.] 

As  by  the  inspection  of  the  transcript  of  the  record  which  was  brought  into 
the  Supreme  -Court  of  the  United  States  by  virtue  of  an  appeal  taken  by  — — , 
according  to  the  act  of  Congress  in  such  case  made  and  provided,  fully  appears. 

And  whereas,  on  the  day  of  ,  19 — ,  the  said  cause  came  on  to  ba 

heard  before  the  said  Supreme  Court,  on  the  said  transcript'  of  record,  on  ap- 
peal, and  was  argued  by  counsel. 

On  consideration  whereof  it  is  now  here  ordered,  adjudged  and  decreed  by 
this  court  that  the  decree  of  said  district  court  in  this  cause  be,  and  the  same 
is  hereby  reversed,  with  costs  to  the  original  plaintiff,  ,  against  the  defend- 
ant,   .  [Here  set  forth  the  decree  of  the  Supreme  Court.] 

And  it  is  further  ordered  that  this  cause  be,  and  the  same  is  hereby,  re- 
manded to  the  said  district  court  for  further  proceedings  in  conformity  with 
the  opinion  of  this  court. 

You,  therefore,  are  hereby  commanded  that  such  execution  and  further  pro- 
ceedings be  had  in  said  cause,"  in  conformity  with  the  opinion  and  the  decree 
of  this  court,  as  according  to  right  and  .justice,  and  the  laws  of  the  United 
States,  ought  to  be  had,  the  said  appeal  notwithstanding. 

Witness  the  Honorable  — — ,  Chief  Justice  of  the  United  States,  this  

day  of  ,  A.  D.  19 — . 

"  t 
Clerk  of  the  Supreme  Court  of  the  United  States. 

Upon  receipt  of  the  mandate  by  the  lower  court,  nothing  is  left 
except  for  that  court  to  carry  it  into  execution.  (Durrant  v.  Stor- 
row,  101  U.  S.  555,  25  L.  Ed.  961 ;  Great  Northern  R.  Co.  v.  Western 
Union  Tel.  Co.,  174  Fed.  321,  98  C.  C.  A.  193 ;  In  re  Sanford  Fork 
&  Tool  Co.,  160  U.  S.  247,  40  L.  Ed.  414,  16  Sup.  Ct.  291.)  If,  in 
executing  the  directions  contained  in  the  writ  of  mandate,  either 
party  believes  that  the  lower  court  has  misconstrued  those  direc- 
tions, his  remedy  is  by  appeal  or  mandamus.  (In  re  Blake,  175 
U.  S.  117,  44  L.  Ed.  94,  20  Sup.  Ct.  42 ;  Metcalf  v.  Watertown,  68 
Fed.  861,  16  C.  C.-A.  37 ;  James  v.  Central  Trust  Co.,  108  Fed.  931, 
47  C.  C.  A.  374.) 

In  such  appeals  the  original  judgment  is. not  reviewable,  the 
only  question  being  as  to  the  proper  compliance  with  the  directions 
contained  in  the  writ  of  mandate.  (United  States  v.  Camou,  184 
U.  S.  572,  46  L.  Ed.  694,  22  Sup.  Ct.  505.) 

If  the  writ  of  mandate  is  clear,  leaving  nothing  to  the  discre- 
tion of  the  lower  court,  and  the  action  of  that  court  does  npt  con- 


637  APPEAL  AND  ERROR.     Ch.  75,  §§  1691-1693 

form  to  the  mandate,  the  proper  remedy  is  not  appeal,  but  man- 
damus. (In  re  Sanford  Fork  &  Tool  Co.,  160  U.  S.  247,  40  L.  Ed. 
414,  16  Sup.  Ct.  291 ;  Mason  v.  Pewabic  Min.  Co.,  153  U.  S.  361, 
38  L.  Ed.  745,  14  Sup.  Ct.  847;  In  re  Blake,  175  U.  S.  117,  44 
L.  Ed.  94,  20  Sup.  Ct.  42.) 

§  169J .  Death  of  Party  After  Judgment,  but  Before  Appeal. 
Prior  to  the  act  of  March  3,  1875,  it  was  the  practice,  upon  the 
death  of  a  party  after  judgment  had  been  rendered,  and  before 
the  time  for  taking  an  appeal  had  elapsed,  to  apply  to  the  court 
below  for  an  order  reviving  the  suit  in  the  name  of  the  repre- 
sentative of  the  deceased.  (McClane  v.  Boone,  6  Wall.  246,  18 
L.  Ed.  836.) 

Section  9  of  that  act,  however,  made  all  formal  revival  pro- 
ceedings unnecessary,  the  representative  of  the  deceased  being 
merely  required  to  file  a  certified  copy  of  his  appointment. 
§297,  Judicial  Code,  repeals  the  act  of  Mar.  3,  1875,  and  fur- 
nishes no  substitute  for  it.  Consequently  the  old  practice  of 
formally  applying  for  revivor  in  the  name  of  the  representative 
of  the  deceased  is  again  necessary. 

§  1692.    Death    of   a   Party   During   Appellate   Proceedings. 

When  appellate  proceedings  are  pending  in  the  Supreme  Court 
and  either  party  dies,  Rule  15  of  the  Supreme  Court  Rules 
makes  provision  for  what  shall  be  done.  These  rules  are  set 
out  in  Appendix,  post,  and  the  rule  cited  may  also  be  found 
2  U.  S.  Comp.  Stats.  1916,  §  1232,  p.  1822. 

The  death  of  a  party  pending  appellate,  proceedings  to  the 
circuit  court  of  appeals  is  provided  for  in  Rule  19  of  the  1st,  2d, 
4th,  5th,  7th,  8th  and  9th  circuits,  and  Rule  21  in  the  3d  circuit 
and  Rule  16  in  the  6th  circuit.  These  rules  are  set  out  in 
Appendix. 

§  1693.  Mistake  as  to  Proper  Method  of  Review  not  Ground 
for  Dismissal.  §  4,  Act  Sept.  6,  1916,  c.  — ,  provides  that  a  mis- 
take in  the  proper  method  of  taking  an  appeal  shall  not  cause 
a  dismissal,  but  the  court  shall  take  the  action  that  would  be 
appropriate  if  proper  appellate  procedure  had  been  followed. 
(39  Stats.  727;  Fed.  Stats.  Ann.,  2d  ed.,  Pamphlet  Sup.  No.  8, 
"Judiciary";  3  U.  S.  Comp.  Stats.  1916,  §  1649a,  p.  3275.) 


Ch.  76  MANUAL  OF  FEDERAL  PROCEDURE.  638 


CHAPTER  76. 

MISCELLANEOUS  PROVISIONS. 

SEO. 

1700.  Construction  of  Code. 

1701.  Definitions. 

1702.  Priority  of  Eevenue  Cases  or  Where  State  a  Party. 

1703.  Suits  Under  Revenue  and  Postal  Laws,  etc.,  Brought  in  Name  of  United 

States. 

1704.  District  Attorney's  Prosecution  of  Fraud  on  the  Revenue. 

1705.  Warrants  for  Searches  and  Seizures  Under  Customs  Laws. 

1706.  Procedure  in  Seizure  Cases  Under  Customs  Laws. 

1707.  Bailing  Property  Seized  Under  Customs  Laws. 

1708.  Property  Taken  Under  Eevenue  Laws  Irrepleviable. 

1709.  Credits  Allowed  in  Government  Suits  Against  Individuals. 

1710.  Credits  Allowed  in  Government  Suits  Under  Postal  Laws. 

1711.  Interest  in  Postal  Suits  on  Balances  Due. 

1712.  Sale  after  Condemnation  Under  Revenue  Laws. 

1713.  Paying  Money  into  Court. 

1714.  Withdrawal  of  Money  Paid  into  Court. 

1715.  Liens  on  Vessels  for  Repairs,  Supplies  or  Other  Necessaries — Procedure 

in  Sem. 
1716..    Seizing  and  Detaining  Letters,  etc.,  Carried  Contrary  to  Law. 

1717.  Same — Disposition  of  Seizures. 

1718.  Mandamus  to  Compel  Obedience  to  Provisions  of  Interstate  Commerce 

Act  Respecting  Securing  Information  Concerning  Stocks,  Bonds  and 
Other  Securities. 

1719.  Trading  With  the  Enemy  Act — Jurisdiction  of  District  Court. 

1720.  Same — Courts  Philippine  Islands  and  Canal  Zone. 

1721.  Limitation  on  Suits  by  Alien  Enemy. 

1722.  Suits   by    Enemy   against   Licensee    Relative   to   Patents,    Trademarks, 

Prints,  Labels  and  Copyrights  Under  Trading  With  the  Enemy  Act. 

1723.  Same — Against  Others  Than  Licensee. 

1724.  Action  on  Claim  Against  Bureau  War  Risk  Insurance. 

1725.  Jurisdiction  of  Prosecutions  Under  Act  for  National  Security  and  De- 

fense  Production,  Conservation  and   Distribution  of  Food   Products 
and  Fuel. 

1726.  Civil  Action  Under  Liquor  Laws  of  District  of  Columbia  for  Injuries 

by  Intoxicated  Person  or  in  Consequence  of  Intoxication. 

1727.  Condemnation  Proceedings — Land  for  Military  Purposes. 

1728.  Condemnation  Proceedings  for  Harbor  Improvements. 


639  MISCELLANEOUS   PROVISIONS.      Ch.  76,  §§  1700-1701 

§  1700.    Construction  of  Code. 

§292,  Jud.  Code.  "Wherever,  in  any  law  not  contained 
within  this  act,  a  reference  is  made  to  any  law  revised  or 
embraced  herein,  such  reference,  upon  the  taking  effect  hereof, 
shall  be  construed  to  refer  to  the  section  of  this  act  into  which 
has  been  carried  or  revised  the  provision  of  law  to  which 
reference  is  so  made."  (36  Stats.  1167;  5  Fed.  State.  Ann. 
2d  ed.,  p.  1084;  2  U.  S.  Comp.  Stats.  1916,  §  1269.) 

§293,  Jud.  Code.  "The  provisions  of  sections  one  to  five, 
both  inclusive,  of  the  Revised  Statutes  (§1701,  below),  shall 
apply  to  and  govern  the  construction  of  the  provisions  of  this 
act.  The  words  'this  title,'  wherever  they  occur  herein,  shall 
be  construed  to  mean  this  act."  (36  State.  1167;  5  Fed.  State. 
Ann.,  2d  ed.,  p.  1084;  2  U.  S.  Comp.  Stats.  1916,  §  1272.) 

§  294,  Jud.  Code.  ' '  The  provisions  of  this  act,  so  far  as 
they  are  substantially  the  same  as  existing  statutes,  shall  be 
construed  as  continuations  thereof,  and  not  as  new  enactments, 
and  there  shall  be  no  implication  of  a  change  of  intent  by 
reason  of  a  change  of  words  in  such  statute,  unless  such  change 
of  intent  shall  be  clearly  manifest."  (36  Stats.  1167;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  1084 ;  2  U.  S.  Comp.  State.  1916,  §  1271 ; 
Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  42.) 

§295,  Jud.  Code.  "The  arrangement  and  classification  of 
the  several  sections  of  this  act  have  been  made  for  the  pur- 
pose of  a  more  convenient  and  orderly  arrangement  of  the 
same,  and  therefore  no  inference  or  presumption  of  a  legis- 
lative construction  is  to  be  drawn  by  reason  of  the  chapter 
under  which  any  particular  section  is  placed."  (36  Stats. 
1167;  5  Fed.  State.  Ann.,  2d  ed.,  p.  1085;  2  U.  S.  Comp.  State. 
1916,  §  1272.) 

§  1701.    Definitions. 

§§  1-5,  Rev.  Stats.  "§1.  In  determining  the  meaning  of 
the  Revised  Statutes,  or  of  any  act  or  resolution  of  Congress 
passed  subsequent  to  February  twenty-fifth,  eighteen  hundred 
and  seventy-one,  words  importing  the  singular  number  may 
extend  and  be  applied  to  several  persons  or  things;  words 
importing  the  plural  number  may  include  the  singular :  words 


§  1702,  Ch.  76  MANUAL  OF  FEDERAL  PROCEDURE.  640 

importing  the  masculine  gender  may  be  applied  to  females; 
the  words  'insane  person'  and  'lunatic'  shall  include  every 
idiot,  non  compos,  lunatic,  and  insane  person;  the  word  'per- 
son' may  extend  and  be  applied  to  partnerships  and  corpo 
rations,  and  the  reference  to  any  officer  shall  include  any 
person  authorized  by  law  to  perform  the  duties  of  such  office, 
unless  the  context  shows  that  such  words  were  intended  to  be 
used  in  a  more  limited  sense;  and  a  requirement  of  an  'oath* 
shall  be  deemed  complied  with  by  making  affirmation  in  judi- 
cial form. 

"§2.  (County.)  The  word  'county'  includes  a  parish,  or 
any  other  equivalent  subdivision  of  a^state  or  territory  of  the 
United  States. 

"§3.  (Vessel.)  The  word  'vessel'  includes  every  descrip- 
tion of  water  craft  or  other  artificial  contrivance  used,  or 
capable  of  being  used,  as  a  means  of  transportation  on  water. 

"§4.  (Vehicle.)  T^ie  word  'vehicle'  includes  every  de- 
scription of  carriage  or  other  artificial  contrivance  used,  or 
capable  of  being  used,  as  a  means  of  transportation  on  land. 

"§5.  (Company,  association.)  The  word  ' company '  or  ^as- 
sociation,' when  used  in  reference  to  a  corporation,  shall  be 
deemed  to  embrace  the  words  'successors  and  assigns  of  such 
company  or  association,'  in  like  manner  as  if  these  last-named 
words,  or  words  of  similar  import,  were  expressed."  (Fed. 
Stats.  Ann.,  2ded.,  title  "Statutes";  1  U.  S.  Comp.  Stats.  1916, 
§§  1-5.) 

§  1702.    Priority  of  Revenue  Cases  or  Where  State  a  Party. 

§  949,  Rev.  Stats.  ' '  When  a  state  is  a  party,  or  the  execu- 
tion of  the  revenue  laws  of  a  state  is  enjoined  or  stayed,  in 
any  suit  in  a  court  of  the  United  States,  such  state  or  the 
party  claiming  under  the  revenue  laws  of  a  state,  the  execu- 
tion whereof  is  enjoined  or  stayed,  shall  be  entitled,  on  show- 
ing sufficient  reason,  to  have  the  cause  heard  at  any  time  after 
it  is  docketed,  in  preference  to  any  civil  cause  pending  in  such 
court  between  private  parties."  (6  Fed.  Stats.  Ann.,  2d  ed., 
p.  92;  3  U.  S.  Comp.  Stats.  1916,  §  1581.) 


641  MISCELLANEOUS  PROVISIONS.      Ch.  76,  §§  1703-1704 

§  1703.    Suits  Under  Revenue  and  Postal  Laws,  etc.,  Brought 
in  Name  of  United  States. 

§  919,  Rev.  Stats.  "All  suits  for  the  recovery  of  any  duties, 
imposts,  or  taxes,  or  for  the  enforcement  of  any  penalty  or 
forfeiture  provided  by  any  act  respecting  imports  or  tonnage, 
or  the  registering  and  recording  or  enrolling  and  licensing  of 
vessels,  or  the  internal  revenue,  or  direct  taxes,  and  all  suits 
arising  under  the  postal  laws,  shall  be  brought  in  the  name 
of  the  United  States."  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  79;  3 
U.  S.  Comp.  Stats.  1916,  §  1545.) 

§  1704.     District   Attorney's   Prosecution   of   Fraud   on   the 
Revenue. 

§838,  Rev.  Stats.  "It  shall  be  the  duty  of  every  district 
attorney  to  whom  any  collector  of  customs,  or  of  internal 
revenue,  shall  report,  according  to  law,  any  case  in  which  any 
fine,  penalty,  or  forfeiture  has  been  incurred  in  the  district 
of  such  attorney  for  the  violation  of  any  law  of  the  United 
States  relating  to  the  revenue,  to  cause  the  proper  proceed- 
ings to  be  commenced  and  prosecuted  without  delay,  for  the 
fines,  penalties,  and  forfeitures,  in  such  case  provided,  unless, 
upon  inquiry  and  examination,  he  shall  decide  that  such  pro- 
ceedings cannot  probably  be  sustained,  or  that  the  ends  of 
public  justice  do  not  require  that  such  proceedings  should  be 
instituted;  in  which  case  he  shall  report  the  facts  in  customs 
cases  to  the  Secretary  of  the  Treasury,  and  in  internal  revenue 
cases  to  the  Commissioner  of  Internal  Revenue  for  their  direc- 
tion. And  for  the  expenses  incurred  and  services  rendered 
in  all  such  cases,  the  district  attorney  shall  receive  and  be 
paid  from  the  Treasury  such  sum  as  the  Secretary  of  the 
Treasury  shall  deem  just  and  reasonable,  upon  the  certificate 
of  the  judge  before  whom  such  cases  are  tried  or  disposed  of : 
Provided,  That  the  annual  compensation  of  such  district  at- 
torney shall  not  exceed  the  maximum  amount  prescribed  by 
law,  by  reason  of  such  allowance  and  payment."  (4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  761;  2  U.  S.  Comp.  Stats.  1916,  §  1297.) 

Manual — 41 


§§  1705-1706,  Ch.  76     MANUAL  OF  FEDERAL  PROCEDURE.  642 

§  1705.    Warrants  for  Searches  and  Seizures  Under  Customs 
Laws. 

§  3066,  Rev.  Stats.  "If  any  collector,  naval  officer,  sur- 
veyor, or  other  person  specially  appointed  by  either  of  them 
or  inspector  shall  have  cause  to  suspect  a  concealment  of  any 
merchandise  in  any  particular  dwelling-house,  store-building, 
or  other  place,  they,  or  either  of  them,  upon  proper  applica- 
tion on  oath  to  any  justice  of  the  peace,f  or  district  judge  of 
cities,  police  justice,  or  any  judge  of  the  circuit  or  district 
court  of  the  United  States,  or  any  Commissioner  of  the  United 
States  circuit  court,  shall  be  entitled  to  a  warrant  to  enter 
such  house,  store,  or  other  place,  in  the  daytime  only,  and 
there  to  search  for  such  merchandise ;  and  if  any  shall  be 
found,  to  seize  and  secure  the  same  for  trial;  and  all  such 
merchandise,  upon  which  the  duties  shall  not  have  been  paid, 
or  secured  to  be  paid,  shall  be  forfeited."  (2  Fed.  Stats. 
Ann.,  2d  ed.,  p.  1163;  6  U.  S.  Comp.  Stats.  1916,  §5769.) 

§  1706.    Procedure  in  Seizure  Cases  Under  Customs  Laws. 

§  923,  Rev.  Stats.  ' l  When  any  vessel,  goods,  wares,  or 
merchandise  are  seized  by  any  officer  of  the  customs,  and 
prosecuted  for  forfeiture  by  virtue  of  any  law  respecting  the 
revenue,  or  the  registering  and  recording,  or  the  enrolling 
and  licensing  of  vessels,  the  court  shall  cause  fourteen  days' 
notice  to  be  given  of  such  seizure  and  libel,  by  causing  the 
substance  of  such  libel,  with  the  order  of  the  court  thereon, 
setting  forth  the  time  and  place  appointed  for  trial,  to  be 
inserted  in  some  newspaper  published  near  the  place  of  seizure, 
and  by  posting  up  the  same  in  the  most  public  manner  for  the 
space  of  fourteen  days,  at  or  near  the  place  of  trial ;  and  proc- 
lamation shall  be  made  in  such  manner  as  the  court  shall 
direct.  And  if  no  person  appears  and  claims  such  vessel, 
goods,  wares,  or  merchandise,  and  gives  bond  to  defend  the 
prosecution  thereof  and  to  respond  the  cost  in  case  he  shall 
not  support  his  claim,  the  court  shall  proceed  to  hear  and  de- 
termine the  cause  according  to  law."  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  324 ;  3  U.  S.  Comp.  Stats.  1916,  §  1549.) 


643  MISCELLANEOUS  PROVISIONS.       Ch.  76,  §§  1707-1708 

§  1707.     Bailing  Property  Seized  Under  Customs  Laws. 

§  938,  Rev.  Stats.  "Upon  the  prayer  of  any  claimant  to  the 
court,  that  any  vessel,  goods,  wares,  or  merchandise,  seized 
and  prosecuted  under  any  laws  respecting  the  revenue  from 
imports  or  tonnage,  or  the  registering  and  recording,  or  the 
enrolling  and  licensing  of  vessels,  or  any  part  thereof,  should 
be  delivered  to  him,  the  court  shall  appoint  three  proper  per- 
sons to  appraise  such  property,  who  shall  be  sworn  in  open 
court,  or  before  a  commissioner  appointed  by  the  district  court 
to  administer  oaths  to  •  appraisers,  for  the  faithful  discharge 
of  their  duty ;  and  the  appraisement  shall  be  made  at  the  ex- 
pense of  the  party  on  whose  prayer  it  is  granted.  If,  on  the 
return  of  the  appraisement,  the  claimant,  with  one  or  more 
sureties,  to  be  approved  by  the  court,  shall  execute  a  bond  to 
the  United  States  for  the  payment  of  a  sum  equal  to  the  sum 
at  which  the  property  prayed  to  be  delivered  is  appraised, 
and  produce  a  certificate  from  the  collector  of  the  district 
where  the  trial  is  had,  and  of  the  naval  officer  thereof,  if  any 
there  be,  that  the  duties  on  the  goods,  wares,  and  merchandise, 
or  tonnage  duty  on  the  vessel  so  claimed,  have  been  paid  or 
secured  in  like  manner  as  if  the  same  had  been  legally  entered, 
the  court  shall,  by  rule,  order  such  vessel,  goods,  wares,  or 
merchandise  to  be  delivered  to  such  claimant;  and  the  said 
bond  shall  be  lodged  with  the  proper  officer  of  the  court.  If 
judgment  passes  in  favor  of  the  claimant,  the  court  shall  cause 
the  said  bond  to  be  canceled ;  but  if  judgment  passes  against 
the  claimant,  as  to  the  whole  or  any  part  of  such  vessel,  goods, 
wares,  or  merchandise,  and  the  claimant  does  not  within 
twenty  days  thereafter  pay  into  the  court,  or  to  the  proper 
officer  thereof,  the  amount  of  the  appraised  value  of  such 
vessel,  goods,  wares,  or  merchandise  so  condemned,  with  the 
costs,  judgment  shall  be  granted  upon  the  bond,  on  motion  in 
open  court,  without  further  delay."  (3  Fed.  Stats.  Ann., 
2d  ed.,  p.  325;  3  U.  S.  Comp.  Stats.  1916,  §  1564.) 

§  1708.    Property  Taken  Under  Revenue  Laws  Irrepleviable. 

§934,  Rev.  Stats.  "All  property  taken  or  detained  by  any 
officer  or  other  person,  under  authority  of  any  revenue  law  of 
the  United  States,  shall  be  irrepleviable,  and  shall  be  deemed 
to  be  in  the  custody  of  the  law  and  subject  only  to  the  orders. 


§§  1709-1711,  Ch.  76     MANUAL  OP  FEDERAL  PROCEDURE.  644 

and  decrees  of  the  courts  of  the  United  States  having  juris- 
diction thereof."  (Fed.  Stats.  Ann.,  2d  ed.,  "Replevin"; 
3  U.  S.  Comp.  Stats.  1916,  §  1560.) 

§  1709.     Credits  Allowed  in  Government  Suits  Against  Indi- 
viduals. 

§951,  Rev.  Stats.  "In  suits  brought  by  the  United  States 
against  individuals,  no  claim  for  a  credit  shall  be  admitted, 
upon  trial,  except  such  as  appear  to  have  been  presented  to 
the  accounting  officers  of  the  Treasury,  for  their  examination, 
and  to  have  been  by  them  disallowed,  in  whole  or  in  part,  unless 
it  is  proved  to  the  satisfaction  of  the  court  that  the  defendant 
is,  at  the  time  of  the  trial,  in  possession  of  vouchers  not  before 
in  his  power  to  procure,  and  that  he  was  prevented  from  ex- 
hibiting a  claim  for  such  credit  at  the  Treasury  by  absence 
from  the  United  States  or  by  some  unavoidable  accident."  (2 
Fed.  Stats.  Ann.,  2d  ed.,  p.  211;  3  U.  S.  Comp.  Stats.  1916, 
§  1588.) 

§  1710.    Credits  Allowed  in  Government  Suits  Under  Postal 
Laws. 

§952,  Rev.  Stats.  "No  claim  for  a  credit  shall  be  allowed 
upon  the  trial  of  any  suit  for  delinquency  against  a  postmaster, 
contractor,  or  other  officer,  agent,  or  employee  of  the  Postoffice 
Department,  unless  the  same  has  been  presented  to  the  sixth 
auditor  and  by  him  disallowed,  in  whole  or  in  part,  or  unless 
it  is  proved  to  the  satisfaction  of  the  court  that  the  defend- 
ant is,  at  the  time  of  trial,  in  possession  of  vouchers  not  before 
in  his  power  to  procure,  and  that  he  was  prevented  from 
exhibiting  to  the  said  auditor  a  claim  for  such  credit  by  some 
unavoidable  accident."  (2  Fed.  Stats.  Ann.,  2d  ed.,  p.  215; 
3  U.  S.  Comp.  Stats.  1916,  §  1589.) 

§  1711.    Interest  in  Postal  Suits  on  Balances  Due. 

§  964,  Rev.  Stats.  ' '  In  all  suits  for  balances  due  to  the 
Postoffice  Department,  interest  thereon  shall  be  recovered, 
from  the  time  of  the  default,  at  the  rate  of  six  per  centum 
a  year."  (Fed.  Stats.. Ann.,  2d  ed.,  "Postoffice  Department"; 
3  U.  S.  Comp.  Stats.  1916,  §  1602.) 


645  MISCELLANEOUS  PROVISIONS.      Ch.  76,  §§  1712-1714 

§  1712.    Sale  After  Condemnation  Under  Revenue  Laws. 

§  939,  Rev.  Stats.  "All  vessels,  goods,  wares,  or  merchan- 
dise which  shall  be  condemned  by  virtue  of  any  law  respect- 
ing the  revenue  from  imports  or  tonnage,  or  the  registering 
and  recording,  or  the  enrolling  and  licensing  of  vessels,  and 
for  which  bonds  shall  not  have  been  given  by  the  claimant, 
shall  be  sold  by  the  marshal  or  other  proper  officer  of  the  court 
in  which  condemnation  shall  be  had,  to  the  highest  bidder,  at 
public  auction,  by  order  of  such  court,  and  at  such  place  as 
the  court  may  appoint,  giving  at  least  fifteen  days'  notice 
(except  in  cases  of  perishable  merchandise)  in  one  or  more  of 
the  public  newspapers  of  the  place  where  such  sale  shall  be; 
or  if  no  paper  is  published  in  such  place,  in  one  or  more  of  the 
papers  published  in  the  nearest  place  thereto ;  for  which  adver- 
tising, a  sum  not  exceeding  five  dollars  shall  be  paid.  And 
the  amount  of  such  sales,  deducting  all  proper  charges,  shall 
be  paid  within  ten  days  after  such  sale  by  the  person  selling 
the  same  to  the  clerk  or  other  proper  officer  of  the  court 
directing  such  sale,  to  be  by  him,  after  deducting  the  charges 
allowed  by  the  court,  paid  to  the  collector  of  the  district  in 
which  such  seizure  or  forfeiture  has  taken  place,  as  herein- 
before directed."  (3  Fed.  Stats.  Ann.,  2d  ed.,  p.  326;  3  U.  S, 
Comp.  Stats.  1916,  §  1565.) 

§  1713.    Paying  Money  into  Court. 

§  995,  Rev.  Stats.  ' '  All  moneys  paid  into  any  court  of  the 
United  States,  or  received  by  the  officers  thereof,  in  any  cause 
pending  or  adjudicated  in  such  court,  shall  be  forthwith  de- 
posited with  the  Treasurer,  an  assistant  treasurer,  or  a  desig- 
nated depositary  of  the  United  States,  in  the  name  and  to  the 
credit  of  such  court:  Provided,  That  nothing  herein  shall  be 
construed  to  prevent  the  delivery  of  any  such  money  upon 
security,  according  to  agreement  of  parties,  under  the  direc- 
tion of  the  court. "  (6  Fed.  Stats.  Ann.,  2d  ed.,  p.  631 ;  3  U.  S. 
Comp.  Stats.  1916,  §  1644.) 

§  1714.    Withdrawal  of  Money  Paid  into  Court. 

§  996,  Rev.  Stats,  as  amended  Act  March  3,  1911,  c.  224. 
"No  money  deposited  as  aforesaid  shall  be  withdrawn  except 


§  1715,  Ch.  76  MANUAL  OF  FEDERAL  PROCEDURE. 

by  order  of  the  judge  or  judges  of  said  court,  respectively,  in 
term  or  in  vacation,  to  be  signed  by  such  judge  or  judges,  and 
to  be  entered  and  certified  of  record  by  the  clerk;  and  every 
such  order  shall  state  the  cause  in  or  on  account  of  which  it 
is  drawn. 

"In  every  case  in  which  the  right  to  withdraw  money  so 
deposited  has  been  adjudicated  or  is  not  in  dispute  and  such 
money  has  remained  so  deposited  for  at  least  five  years  un- 
claimed by  the  person  entitled  thereto,  it  shall  be  the  duty 
of  the  judge  or  judges  of  said  court,  or  its  successor,  to  cause 
such  money  to  be  deposited  in  the  Treasury  of  the  United 
States,  in  the  name  and  to  the  credit  of  the  United  States: 
Provided,  That  any  person  or  persons  or  any  corporation  or 
company  entitled  to  any  such  money  may,  on  petition  to  the 
court  from  which  the  money  was  received,  or  its  successor, 
and  upon  notice  to  the  United  States  attorney  and  full  proof 
of  right  thereto,  obtain  an  order  of  court  directing  the  pay- 
ment of  such  money  to  the  claimant,  and  the  money  deposited 
as  aforesaid  shall  constitute  and  be  a  permanent  appropria- 
tion for  payments  in  obedience  to  such  orders,  and  this  act 
is  applicable  to  all  money  deposited  in  the  Treasury  of  the 
United  States  in  accordance  with  section  nine  hundred  and 
ninety-six,  Revised  Statutes  of  the  United  States,  as  amended 
February  nineteenth,  eighteen  hundred  and  ninety-seven." 
(36  Stats.  1083;  6  Fed.  Stats.  Ann.,  2d  ed.,  p.  632;  3  U.  S. 
Comp.  Stats.  1916,  §  1645.) 

§  1715.    Liens  on  Vessels  for  Repairs,  Supplies  or  Other  Neces- 
saries— Procedure  in  Rem. 

§§  1-5,  Act  June  23,  1910,  c.  373.  "  (Maritime  lien  on  ves- 
sels for  repairs,  supplies,  etc.)  That  any  person  furnishing 
repairs,  supplies,  or  other  necessaries,  including  the  use  of  dry 
dock  or  marine  railway,  to  a  vessel,  whether  foreign  or  domes- 
tic, upon  the  order  of  the  owner  or  owners  of  such  vessel,  or 
of  a  person  by  him  or  them  authorized,  shall  have  a  maritime 
lien  on  the  vessel  which  may -be  enforced  by  a  proceeding  in 
rem,  and  it  shall  not  be  necessary  to  allege  or  prove  that  credit 
was  given  to  the  vessel."  (36  Stats.  604,  605;  Fed.  Stats. 
Ann.,  2d  ed.,  "Shipping  and  Navigation";  7  U.  S.  Comp. 
Stats.  1916,  §  7783,  p.  8229.) 


647  MISCELLANEOUS  PROVISIONS.  Ch.  76,  §  1715 

§2.  "(Persons  presumed  to  have  authority.)  That  the 
following  persons  shall  be  presumed  to  have  authority  from 
the  owner  or  owners  to  procure  repairs,  supplies,  and  other 
necessaries  for  the  vessel:  The  managing  owner,  ship's  hus- 
band, master,  or  any  person  to  whom  the  management  of  the 
vessel  at  the  port  of  supply  is  intrusted.  No  person  tortiously 
or  unlawfully  in  possession  or  charge  of  a  vessel  shall  have 
authority  to  bind  the  vessel."  (Fed.  Stats.  Ann.,  2d  ed-., 
"Shipping  and  Navigation";  7  U.  S.  Comp.  Stats.  1916,  §  7784, 
p.  8237.) 

§  3.  "  (Charterers,  etc.)  That  the  officers  and  agents  of  a 
vessel  specified  in  section  two  shall  be  taken  to  include  such 
officers  and  agents  when  appointed  by  a  charterer,  by  an  owner 
pro  hoc  vice,  or  by  an  agreed  purchaser  in  possession  of  the 
vessel,  "but  nothing  in  this  act  shall  be  construed  to  confer  a 
lien  when  the  furnisher  knew,  or  by  the  exercise  of  reasonable 
diligence  could  have  ascertained,  that  because  of  the  terms  of 
a  charter  party,  agreement  for  sale  of  the  vessel,  or  for  any 
other  reason,  the  person  ordering  the  repairs,  supplies,  or 
other  necessaries  was  without  authority  to  bind  the  vessel 
therefor."  (Fed.  Stats.  Ann.,  2d  ed.,  "Shipping  and  Naviga- 
tion"; 7  U.  S.  Comp.  Stats.  1916,  §  7785.) 

§4.  "(Waiving  lien  —  other  proceedings  not  affected.) 
That  nothing  in  this  act  shall  be  construed  to  prevent  a  fur- 
nisher of  repairs,  supplies,  or  other  necessaries  from  waiving 
his  right  to  a  lien  at  any  time,  by  agreement  or  otherwise,  and 
this  act  shall  not  be  construed  to  affect  the  rules  of  law  now 
existing  either  in  regard  to  the  right  to  proceed  against  a  vessel 
for  advances  or  in  regard  to  laches  in  the  enforcement  of  liens 
on  vessels,  or  in  regard  to  the  priority  or  rank  of  liens,  or  in 
regard  to  the  right  to  proceed  in  personam."  (Fed.  Stats. 
Ann.,  2d  ed.,  "Shipping  and  Navigation";  7  U.  S.  Comp. 
Stats.  1916,  §7786.) 

§5.  "  (State  laws  superseded.)  That  this  act  shall  super- 
sede the  provisions  of  all  state  statutes  conferring  liens  on 
vessels  in  so  far  as  the  same  purport  to  create  rights  of  action 
to  be  enforced  by  proceedings  in  rem  against  vessels  for  re- 
pairs, supplies,  and  other  necessaries."  (Fed.  Stats.  Ann., 
2d  ed.,  "Shipping  and  Navigation";  7  U.  S.  Comp.  Stats.  1916, 
§  7787.) 


§§  1716-1718,  Ch.  76     MANUAL  OF  FEDERAL,  PROCEDURE.  6-18 

§  1716.  Seizing  and  Detaining  Letters,  etc.,  Carried  Contrary 
to  Law. 

§3990,  Rev.  Stats.  "Any  special  agent  of  the  Postoffice 
Department,  collector,  or  bther  customs  officer,  or  United 
States  marshal  or  his  deputy,  may  at  all  times  seize  all  letters 
and  bags,  packets,  or  parcels,  containing  letters  which  are  being 
carried  contrary  to  law  on  board  any  vessel  or  on  anv  Pos^ 
route,  and  convey  the  same  to  the  nearest  postoffice,  or  may, 
by  the  direction  of  the  Postmaster  General  or  Secretary  of 
the  Treasury,  detain  them  until  two  months  after  the  final 
determination  of  all  suits  and  proceedings  which  may,  at  any 
time  within  six  months  after  such  seizure,  be  brought  against 
any  person  for  sending  or  carrying  such  letters."  (Fed. 
Stats.  Ann.,  2d  ed.,  "Postal  Service";  7  U.  S.  Comp.  Stats. 
1916,  §  7474.) 

§  1717.    Same — Disposition  of  Seizures. 

§3991,  Rev.  Stats.  "Every  package  or  parcel  seized  by 
any  special  agent  of  the  Postoffice  Department,  collector,  or 
other  customs  officer,  or  United  States  marshal  or  his  depu- 
ties, in  which  any  letter  is  unlawfully  concealed,  shall  be  for- 
feited to  the  United  States,  and  the  same  proceedings  may  be 
had  to  enforce  the  forfeiture  as  are  authorized  in  respect  to 
goods,  wares,  and  merchandise  forfeited  for  violation  of  the 
revenue  laws;  and  all  laws  for  the  benefit  and  protection  of 
customs  officers  making  seizures  for  violating  revenue  laws 
shall  apply  to  officers  making  seizures  for  violating  the  postal 
laws."  (Fed.  Stats.  Ann.,  2d  ed.,  "Postal  Service";  7  U.  S. 
Comp.  Stats.  1916,  ,§  7475.) 

§  1718.  Mandamus  to  Compel  Obedience  to  Provisions  of  Inter- 
state Commerce  Act  Respecting  Securing  Information  Concerning 
Stocks,  Bonds  and  Other  Securities. 

Part  §  19a,  Act  Feb.  4,  1887,  c.  104,  as  Added  ly  Act  Mch. 
1,  1913,  c.  92.  "That  the  district  courts  of  the  United  States 
shall  have  jurisdiction,  upon  the  application  of  the  Attorney 
General  of  the  United  States  at  the  request  of  the  commission, 
alleging  a  failure  to  comply  with  or  a  violation  of  any  of  the 
provisions  of  this  section  by  any  common  carrier,  to  issue  a 


649  MISCELLANEOUS  PROVISIONS.      Ch.  76,  §§  1719-1720 

writ  or  writs  of  mandamus  commanding  such  common  carrier 
to  comply  with  the  provisions  of  this  section."  (37  Stats* 
703 ;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  499 ;  8  U.  S.  Comp.  Stats. 
1916,  §8591  [15],  p.  9247.) 

§  1719.    Trading  With  the  Enemy  Act — Jurisdiction  of  District 
Court. 

§  17,  Act  Oct.  6,  1917,  c.  — .  [Jurisdiction  of  courts.] 
"That  the  district  courts  of  the  United  States  are  hereby  given 
jurisdiction  to  make  and  enter  all  such  rules  as  to  notice  and 
otherwise,  and  all  such  orders  and  decrees,  and  to  issue  such 
process  as  may  be  necessary  and  proper  in  the  premises  to  en- 
force the  provisions  of  this  Act,  with  a  right  of  appeal  from 
the  final  order  or  decree  of  such  court  as  provided  in  sections 
one  hundred  and  twenty-eight  and  two  hundred  and  thirty- 
eight  of  the  Act  of  March  third,  nineteen  hundred  and  eleven, 
entitled  'An  Act  to  codify,  revise,  and  amend  the  laws  relat- 
ing to  the  judiciary.'  '  (Pamphlet  Supp.  Fed.  Stats.  Ann., 
2d  ed.,  p.  137,  "Trading  With  the  Enemy";  U.  S.  Comp.  Stats. 
1916,  §  31151/41,  Adv.  Sheets  244,  Fed.  No.  4,  Supp.,  p.  458.) 

§  1720.    Same — Courts  Philippine  Islands  and  Canal  Zone. 

§  18,  Act  Oct.  6, 1917,  c.  —.  "That  the  several  courts  of  first 
instance  in  the  Philippine  Islands  and  the  district  court  of  the 
Canal  Zone  shall  have  jurisdiction  of  offenses  under  this  Act 
committed  within  their  respective  districts,  and  concurrent 
jurisdiction  with  the  district  courts  of  the  United  States  of 
offenses  under  this  Act  committed  upon  the  high  seas  and  of 
conspiracies  to  commit  such  offense  as  defined  by  section 
thirty-seven  of  the  Act  entitled  'An  Act  to  codify,  revise,  and 
amend  the  penal  laws  of  the  United  States,'  approved  March 
fourth,  nineteen  hundred  and  nine,  and  the  provisions  of  such 
section  for  the  purpose  of  this  Act  are  hereby  extended  to  the 
Philippine  Islands  and  to  the  Canal  Zone."  (Pamphlet  Supp. 
Fed.  Stats.  Ann.,  2d  ed.,  No.  12,  p.  138,  "Trading  With  the 
Enemy";  U.  S.  Comp.  Stats.  1916,  §  3115H,  Adv.  Sheets  244, 
Fed.  No.  4,  Supp.,  p.  458.) 


§§  1721-1722,  Ch.  76     MANUAL  OF  FEDERAL  PROCEDURE.  650 

§  1721.     Limitation  on  Suits  by  Alien  Enemy. 

Part  §  7  (b),Act  Oct.  6,  1917,  c.  —.  "Nothing  in  this  Act 
shall  be  deemed  to  authorize  the  prosecution  of  any  suit  or 
action  at  law  or  in  equity  in  any  court  within  the  United 
States  by  an  enemy  or  ally  of  enemy  prior  to  the  end  of  the 
war,  except  as  provided  in  section  ten  hereof:  Provided,  how- 
ever, That  an  enemy  or  ally  of  enemy  licensed  to  do  business 
under  this  Act  may  prosecute  and  maintain  any  such  suit  or 
action  so  far  as  the  same  arises  solely  out  of  the  business  trans- 
acted within  the  United  States  under  such  license  and  so  long 
as  such  license  remains  in  full  force  and  effect :  And  provided 
further,  That  an  enemy  or  ally  of  enemy  may  defend  by  coun- 
sel any  suit  in  equity  or  action  at  law  which  may  be  brought 
against  him. 

"Receipt  of  notice  from  the  President  to  the  effect  that  he 
has  reasonable  ground  to  believe  that  any  person  is  an  enemy 
or  ally  of  enemy  shall  be  prima  facie  defense  to  any  one  re- 
ceiving the  same,  in  any  suit  or  action  at  law  or  in  equity 
brought  or  maintained,  or  to  any  right  or  set-off  or  recoup- 
ment asserted  by,  such  person  and  based  on  failure  to  com- 
plete or  perform  since  the  beginning  of  the  war  any  contract 
or  other  obligation.  In  any  prosecution  under  section  sixteen 
hereof,  proof  of  receipt  of  notice  from  the  President  to  the 
effect  that  he  has  reasonable  cause  to  believe  that  any  person 
is  an  enemy  or  ally  of  enemy  shall  be  prima,  facie  evidence 
that  the  person  receiving  such  notice  has  reasonable  cause  to 
believe  such  other  person  to  be  an  enemy  or  ally  of  enemy 
within  the  meaning  of  section  three  hereof."  (Pamphlet 
Supp.  Fed.  Stats.  Ann.,  2d  ed..  No.  12,  p.  129,  "Trading 
With  the  Enemy";  U.  S.  Comp.  Stats.  1916,  Adv.  Sheets  244, 
Fed.  No.  4,  Supp.,  p.  446.) 

§  1722.  Suits  by  Enemy  Against  Licensee  Relative  to  Patents, 
Trademarks,  Prints,  Labels  and  Copyrights  Under  Trading  With 
the  Enemy  Act. 

§10  (ft,  Act  Oct.  6,  1917,  c.  —.  "The  owner  of  any 
patent,  trademark,  print,  label,  or  copyright  under  which  a 
license  is  granted  hereunder  may,  after  the  end  of  the  war 
and  until  the  expiration  of  one  year  thereafter,  file  a  bill  in 


651  MISCELLANEOUS  PROVISIONS.  Ch.  76,  §  1722 

equity  against  the  licensee  in  the  district  court  of  the  United 
States  for  the  district  in  which  the  said  licensee  resides,  or, 
if  a  corporation,  in  which  it  has  its  principal  place  of  business 
(to  which  suit  the  Treasurer  of  the  United  States  shall  be 
made  a  party),  for  recovery  from  the  said  licensee  for  all  use 
and  enjoyment  of  the  said  patented  invention,  trademark, 
print,  label,  or  copyrighted  matter:  Provided,  however,  That 
whenever  suit  is  brought,  as  above,  notice  shall  be  filed  with  the 
alien  property  custodian  within  thirty  days  after  date  of  entry 
of  suit:  Provided  further,  That  the  licensee  may  make  any 
and  all  defenses  which  would  be  available  were  no  license 
granted.  The  court  on  due  proceedings  had  may  adjudge 
and  decree  to  the  said  owner  payment  of  a  reasonable  royalty. 
The  amount  of  said  judgment  and  decree,  when  final,  shall  be 
paid  on  order  of  the  court  to  the  owner  of  the  patent  from 
the  fund  deposited  by  the  licensee,  so  far  as  such  deposit  will 
satisfy  said  judgment  and  decree;  and  the  said  payment  shall 
be  in  full  or  partial  satisfaction  of  said  judgment  and  decree, 
as  the  facts  may  appear;  and  if,  after  payment  of  all  such 
judgments  and  decrees,  there  shall  remain  any  balance  of  said 
deposit,  such  balance  shall  be  repaid  to  the  licensee  on  order 
of  the  alien  property  custodian.  If  no  suit  is  brought  within 
one  year  after  the  end  of, the  war,  or  no  notice  is  filed  as  above 
required,  then  the  licensee  shall  not  be  liable  to  make  any 
further  deposits,  and  all  funds  deposited  by  him  shall  be  repaid 
to  him  on  order  of  the  alien  property  custodian.  Upon  entry 
of  suit  and  notice  filed  as  above  required,  or  upon  repayment 
of  funds  as  above  provided,  the  liability  of  the  licensee  to  make 
further  reports  to  the  President  shall  cease. 

"I?  suit  is  brought  as  above  provided,  the  court  may,  at 
any  time,  terminate  the  license,  and  may,  in  such  event,  issue 
an  injunction  to  restrain  the  licensee  from  infringement  there- 
after, or  the  court,  in  case  the  licensee,  prior  to  suit,  shall 
have  made  investment  of  capital  based  on  possession  of  the 
license,  may  continue  the  license  for  such  period  and  upon 
such  terms  and  with  such  royalties  as  it  shall  find  to  be  just 
and  reasonable."  (Pamphlet  Supp.  Fed.  Stats.  Ann.,  2d  ed., 
No.  12,  p.  133;  title  "Trading  With  the  Enemy.") 


§§  1723-1724,  Ch.  76     MANUAL  OP  FEDERAL  PROCEDURE.  652 

§  1723.    Same — Against  Others  Than  Licensee. 

§10  (g),  Act  Oct.  6,  1917,  cv — .  [Suits  by  enemy,  etc., 
against  infringers  of  patents,  trademarks,  etc. — Decree — In- 
junction.] "Any  enemy,  or  ally  of  enemy,  may  institute  and 
prosecute  suits  in  equity  against  any  person  other  than  a 
licensee  under  this  Act  to  enjoin  infringement  of  letters  pat- 
ent, trade-mark,  print,  label,  and  copyrights  in  the  United 
States  owned  or  controlled  by  said  enemy  or  ally  of  enemy, 
in  the  same  manner  and  to  the  extent  that  he  would  be  entitled 
so  to  do  if  the  United  States  was  not  at  war:  Provided,  That 
no  final  judgment  or  decree  shall  be  entered  in  favor  of  such 
enemy  or  ally  of  enemy  by  any  court  except  after  thirty  days ' 
notice  to  the  alien  property  custodian.  Such  notice  shall  be 
in  writing  and  shall  be  served  in  the  same  manner  as  civil 
process  of  Federal  courts."  (Pamphlet  Supp.  Fed.  Stats. 
Ann.,  2d  ed.,  No.  12,  p.  134,  " Trading  With  the  Enemy.") 

§  1724.    Action  on  Claim  Against  Bureau  War  Risk  Insurance. 

§405,  Act  Oct.  6,  1917,  c.  — .  [Actions  on  claims — Par- 
ties— Jurisdiction  —  Judgment  —  Attorney's  fees — Compensa- 
tion or  fees  prohibited — Penalty.]  "That  in  the  event  of  dis- 
agreement as  to  a  claim  under  the  contract  of  insurance 
between  the  bureau  and  any  beneficiary  or  beneficiaries  there- 
under, an  action  on  the  claim  may  be  brought  against  the 
United  States  in  the  district  court  of  the  United  States  in  and 
for  the  district  in  which  such  beneficiaries  or  any  one  of  them 
resides.  The  court,  as  part  of  its  judgment,  shall  determine 
and  allow  such  reasonable  attorney's  fees,  not  to  exceed  ten 
per  centum  of  the  amount  recovered,  to  be  paid  by  the  claim- 
ant on  behalf  of  whom  such  proceedings  are  instituted  to  his 
attorney  and  it  shall  be  unlawful  for  the  attorney  or  for  any 
other  person  acting  as  claim  agent  or  otherwise  to  ask  for, 
contract  for,  or  receive  any  other  compensation  because  of  such 
action.  No  other  compensation  or  fee  shall  be  charged  or  re- 
ceived by  any  person  except  such  as  may  be  authorized  by  the 
commissioner  in  regulations  to  be  promulgated  by  him.  Any 
person  violating  the  provisions  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall, 
for  each  and  every  such  offense,  be  fined  not,  exceeding  $500, 


653  MISCELLANEOUS  PROVISIONS.     Ch.  76,  §§  1725-1726 

or  be  imprisoned  at  hard  labor  not  exceeding  two  years,  or 
both,  in  the  discretion  of  the  court."  (Pamphlet  Supp.  Fed. 
Stats.  Ann.,  No.  12,  p.  165,  "War  Department,  etc.") 

§  1725.  Jurisdiction  of  Prosecutions  Under  Act  for  National 
Security  and  Defense  Production,  Conservation  and  Distribution 
of  Food  Products  and  Fuel. 

§7,  Act  Aug.  10,  1917,  c.  — .  "That  whenever  any  neces- 
saries shall  be  hoarded  as  defined  in  section  six  they  shall  be 
liable  to  be  proceeded  against  in  any  district  court  of  the 
United  States  within  the  district  where  the  same  are  found 
and  seized  by  a  process  of  libel  for  condemnation,  and  if  such 
necessaries  shall  be  adjudged  to  be  hoarded  they  shall  be  dis- 
posed of  by  sale  in  such  manner  as  to  provide  the  most  equi- 
table distribution  thereof  as  the  court  may  direct,  and  the 
proceeds  thereof,  less  the  legal  costs  and  charges,  shall  be  paid 
to  the  party  entitled  thereto.  The  proceedings  of  such  libel 
cases  shall  conform  as  near  as  may  be  to  the  proceedings  in 
admiralty,  except  that  either  party  may  demand  trial  by  jury 
of  any  issue  of  fact  joined  in  any  such  case,  and  all  such  pro- 
ceedings shall  be  at  the  suit  of  and  in  the  name  of  the  United 
States.  It  shall  be  the  duty  of  the  United  States  attorney  for 
the  proper  district  to  institute  and  prosecute  any  such  action 
upon  presentation  to  him  of  satisfactory  evidence  to  sustain 
the  same."  (Pamphlet  Supp.  Fed.  Stats.  Ann.  No.  12,  p.  23t 
"Food  Products  and  Fuel.") 

§  1726.  Civil  Action  Under  Liquor  Laws  of  District  of  Colum- 
bia for  Injuries  by  Intoxicated  Person  or  in  Consequence  of  In- 
toxication. 

§  19,  Act  March  3,  1917,  c.  165.  "Every  wife,  child,  parent 
guardian,  or  employer,  or  other  person  who  shall  be  injured 
in  person  or  property  or  means  of  support  by  any  intoxicated 
person,  or  in  consequence  of  intoxication,  habitual  or  other- 
wise, of  any  person,  such  wife,  child,  parent,  or  guardian  shall 
have  a  right  of  action,  in  his  or  her  own  name,  against  any 
person  who  shall,  by  selling  or  bartering  intoxicating  liquors, 
have  caused  the  intoxication  of  such  person,  for  all  damages 
actually  sustained,  as  well  as  for  exemplary  damages;  and  a 


§  1727,  Ch.  76        MANUAL  OP  FEDERAL  PROCEDURE.  654 

married  woman  shall  have  the  right  to  bring  suit,  prosecute, 
and  control  the  same,  and  the  amount  recovered  the  same  as 
if  unmarried ;  and  all  damages  recovered  by  a  minor  under 
this  Act  shall  be  paid  either  to  such  minor  or  to  his  or  her 
parents,  guardian,  or  next  friend,  as  the  court  shall  direct." 
.  (U.  S.  Comp.  Stats.  1916,  §  3369n,  Advance  Sheets,  239  Fed. 
No.  2,  Supp.,  p.  126.) 

§  1727.    Condemnation  Proceedings  —  Land  for  Military  Pur- 
poses. 

Act  of  July  2,  1917,  c.  — .  [Fortifications,  coast  defenses 
and  military  training  camps — Condemnation  of  land.]  "That 
hereafter  the  Secretary  of  War  may  cause  proceedings  to  be 
instituted  in  the  name  of  the  United  States,  in  any  court  hav- 
ing jurisdiction  of  such  proceedings  for  the  acquirement  by 
condemnation  of  any  land,  temporary  use  thereof  or  other  in- 
terest therein,  or  right  pertaining  thereto,  needed  for  the  site, 
location,  construction,  or  prosecution  of  works  for  fortifica- 
tions, coast  defenses,  and  military  training  camps,  such  pro- 
ceedings to  be  prosecuted  in  accordance  with  the  laws  relating 
to  suits  for  the  condemnation  of  property  of  the  States  wherein 
the  proceedings  may  be  instituted:  Provided,  That  when  the 
owner  of  such  land,  interest  or  rights  pertaining  thereto  shall 
fix  a  price  for  the  same,  which,  in  the  opinion  of  the  Secretary 
of  War,  shall  be  reasonable,  he  may  purchase  or  enter  into  a 
contract  for  the  use  of  the  same  at  such,  price  without  further 
delay :  Provided  further,  That  the  Secretary  of  War  is  hereby 
authorized  to  accept  on  behalf  of  the  United  States  donations 
of  land  and  the  interest  and  rights  pertaining  thereto  required 
for  the  above-mentioned  purposes :  And  provided  further,  That 
when  such  property  is  acquired  in  time  of  war  or  the  immi- 
nence thereof  upon  the  filing  of  the  petition  for  the  condemna- 
tion of  any  land,  temporary  use  thereof  or  other  interest 
therein  or  right  pertaining  thereto  to  be  acquired  for  any  of 
the  purposes  aforesaid,  immediate  possession  thereof  may  be 
taken  to  the  extent  of  the  interest  to  be  acquired  and  the  lands 
may  be  occupied  and  used  for  military  purposes,  and  the  pro- 
vision of  section  three  hundred  and  fifty-five  of  the  Revised 
Statutes,  providing  that  no  public  money  shall  be  expended 
upon  such  land  until  the  written  opinion  of  the  Attorney  Gen- 


655  MISCELLANEOUS  PROVISIONS.  Ch.  76,  §  1728 

eral  shall  be  had  in  favor  of  the  validity  of  the  title,  nor  until 
the  consent  of  the  legislature  of  the  State  in  which  the  land 
is  located  has  been  given,  shall  be,  and  the  same  are  hereby, 
suspended  during  the  period  of  the  .existing  emergency." 
(Pamphlet  Supp.  Fed.  Stats.  Ann.,  No.  12,  p.  112,  "Public 
Property,  Buildings  and  Grounds.") 

§  1728.     Condemnation  Proceedings  for  Harbor  Improvements. 

§  9,  Act  Aug.  8,  1917,  c.  — .  [Land  or  easements  needed 
in  work  of  harbor  improvement — Procurement — Condemnation 
proceedings.]  "That  whenever  any  State,  or  any  reclamation, 
flood  control  or  drainage  district,  or  other  public  agency  cre- 
ated by  any  State,  shall  undertake  to  secure  any  land  or  ease- 
ment therein,  needed  in  connection  with  a  work  of  river  and 
harbor  improvement  duly  authorized  by  Congress,  for  the  pur- 
pose of  conveying  the  same  to  the  United  States  free  of  cost, 
and  shall  be  unable  for  any  reason  to  obtain  the  same  by  pur- 
chase and  acquire  a  valid  title  thereto,  the  Secretary  of  Wai- 
may,  in  his  discretion,  cause  proceedings  to  be  instituted  in 
.the  name  of  the  United  States  for  the  acquirement  by  con- 
demnation of  said  land  or  easement,  and  it  shall  be  the  duty 
of  the  Attorney  General  of  the  United  States  to  institute  and 
conduct  such  proceedings  upon  the  request  of  the  Secretary 
of  War:  Provided,  That  all  expenses  of  said  proceedings  and 
any  award  that  may  be  made  thereunder  shall  be  paid  by  such 
State,  or  reclamation,  flood  control  or  drainage  district,  or 
other  public  agency  as  aforesaid,  to  secure  which  payment  the 
Secretary  of  War  may  require  such  State,  or  reclamation,  flood 
control  or  drainage  district,  or  other  public  agency  as  afore- 
said, to  execute  a  proper  bond  in  such  amount  as  he  may  deem 
necessary  befpre  said  proceedings  are  commenced."  (Pamph- 
let Supp.  Fed.  Stats.  Ann.,  No.  12,  p.  116,  "Rivers,  Har- 
bors and  Canals.") 


APPENDIX, 


PAGE 

THE  JUDICIAL  CODE 661 

RULES  OF  THE  UNITED  STATES  SUPREME  COURT 817 

RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.  . . .  845 

RULES  IN  ADMIRALTY  UNITED  STATES  CIRCUIT  COURTS  OP  AP- 
PEALS    961 

EQUITY  RULES  IN  FORCE  FEBRUARY  1st,  1913,  COMPARED  WITH 
OLD  EQUITY  RULES 971 

TABLES  OP  STATUTES,  CODE  SECTIONS,  RULES  AND  CONSTITU- 
TIONAL PROVISIONS,  QUOTED  OR  CITED  HEREIN 1023 

a.  Revised  Statutes  of  the  United  States 1025 

b.  Judicial  Code  Sections 1029 

c.  Criminal  Code  Sections 1031 

d.  Chronological  Table  of  Acts  of  Congress  Other  Than 

Revised  Statutes  and  Code  Sections 1032 

e.  Supreme  Court  Rules 1034 

f .  Circuit  Courts  of  Appeals  Rules 1034 

g.  Equity  Rules 1035 

h.  Constitutional  Provisions 1036 

i.  Amendments  to  the  United  States  Constitution 1036 

Manual — i3  (657) 


THE  JUDICIAL  CODE. 

(659) 


THE  JUDICIAL  CODE. 


CHAPTER  ONE. 
DISTRICT  COUBTS— ORGANIZATION. 


SEO. 

1.  District    courts    established;    ap- 

pointment    and     residence     of 
judges. 

2.  Salaries  of  district  judges. 

3.  Clerks. 

4.  Deputy  clerks. 

5.  Criers  and  bailiffs. 

6.  Records;  where  kept. 

7.  Effect  of  altering  terms. 

8.  Trials    not    discontinued    by    new 

term. 

9.  Courts  always  open  as  courts  of 

admiralty  and  equity. 

10.  Monthly  adjournments  for  trial  of 

criminal  causes. 

11.  Special  terms. 

12.  Adjournment    in    case    of    nonat- 

tendance  of  judge. 

13.  Designation  of  another  judge  in 

case  of  disability  of  judge. 


SEC. 

14.  Designation   of  another  judge  in 

case  of  an  accumulation  of  busi- 
ness. 

15.  When  designation  to  be  made  by 

Chief  Justice. 

16.  New  appointment  and  revocation. 

17.  Designation    of   district   judge   in 

aid  of  another  judge. 

18.  When  circuit  judge  may  be  desig- 

nated to  hold  district  court. 

19.  Duty  of  district  and  circuit  judge 

in  such  cases. 

20.  When  district  judge  is  interested 

or  related  to  parties. 

21.  When  affidavit  of  personal  bias  or 

prejudice  of  judge  is  filed. 

22.  Continuance  in  case  of  vacancy  in 

office. 

23.  Districts    having    more    than    one 

judge;  division  of  business. 


§  1.  (As  amended  Act  July  30,  1914,  c.  216.)  In  each  of  the  districts 
described  in  chapter  five  there  shall  be  a  court  called  a  district  court,  for 
which  there  shall  be  appointed  one  judge,  to  be  called  a  district  judge,  ex- 
cept that  in  the  northern  district  of  California,  the  southern  district  of 
California,  the  northern  district  of  Illinois,  the  district  of  Minnesota,  the 
district  of  Nebraska,  the  district  of  New  Jersey,  the  eastern  district  of 
New  York,  the  northern  and  southern  districts  of  Ohio,  the  district  of  Ore- 
gon, the  eastern  and  western  districts  of  Pennsylvania,  and  the  western 
district  of  Washington,  there  shall  be  an  additional  district  judge  in  each, 
and  in  the  southern  district  of  New  York  three  additional  district  judges : 
Provided,  That  there  shall  be  one  judge  for  the  eastern  and  western  dis- 
tricts of  South  Carolina,  one  judge  for  the  eastern  and  middle  districts 
of  Tennessee,  and  one  judge  for  the  northern  and  southern  districts  of 
Mississippi:  Provided  further,  That  the  district  judge  for  the  middle  dis- 
trict of  Alabama  shall  continue  as  heretofore  to  be  a  district  judge  for 
the  northern  district  thereof.  Every  district  judge  shall  reside  in  the  dis- 

(661) 


662  APPENDIX. 

trict  or  one  of  the  districts  for  which  he  is  appointed,  and  for  offending 
against  this  provision  shall  be  deemed  guilty  of  a  high  misdemeanor. 
(38  Stats.  580.) 

Provisions  as  to  additional  judges  in  the  southern  district  of  Georgia,  dis- 
trict of  New  Jersey,  eastern  district  of  Pennsylvania,  eastern  and  western 
districts  of  South  Carolina,  and  western  district  of  Texas  will  be  foun.d  under 
the  states  referred  to  respectively  under  §§  77,  96,  103,  105  and  108,  post. 

§  2.  Each  of  the  district  judges  shall  receive  a  salary  of  six  thousand 
dollars  a  year,  to  be  paid  in  monthly  installments.  (36  Stats.  1087. 
Superseding  act  of  Feb.  12,  1903,  c.  547,  32  Stats.  825,  and  §  554,  Eev. 
Stats.,  which  are  repealed  by  §  297,  Jud.  Code.) 

§  3.  (Re-enactment  of  §  555,  Rev.  Stats.)  A  clerk  shall  be  appointed 
for  each  district  court  by  the  judge  thereof,  except  in  cases  otherwise  pro- 
vided for  by  law.  (36  Stats.  1087;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  817;  1 
U.  S.  Comp.  Stats.  1916,  §  970.) 

§  4.  (Superseding  §  558,  Rev.  Stats.)  Except  as  otherwise  specially 
provided  by  law,  the  clerk  of  the  district  court  for  each  district  may,  with 
the  approval  of  the  district  judge  thereof,  appoint  such  number  of  deputy 
clerks  as  may  be  deemed  necessary  by  such  judge,  who  may  be  designated 
to  reside  and  maintain  offices  at  such  places  of  holding  court  as  the  judge 
may  determine.  Such  deputies  may  be  removed  at  the  pleasure  of  the 
clerk  appointing  them,  with  the  concurrence  of  the  district  judge.  In  case 
of  the  death  of  the  clerk,  his  deputy  or  deputies  shall,  unless  removed, 
continue  in  office  and  perform  the  duties  of  the  clerk,  in  his  name,  until 
a  clerk  is  appointed  and  qualified;  and  for  the  default  or  misfeasances  in 
office  of  any  such  deputy,  whether  in  the  lifetime  of  the  clerk  or  afler  his 
death,  the  clerk  and  his  estate  and  the  sureties  on  his  official  bond  shall  be 
liable;  and  his  executor  or  administrator  shall  have  such  remedy  for  any 
such  default  or  misfeasances  committed  after  his  death  as  the  clerk  would 
be  entitled  to  if  the  same  had  occurred  in  his  lifetime.  (36  Stats.  1087; 
4  Fed.  Stats.  Ann.,  2d  ed.,  p.  817;  1  U.  S.  Comp.  Stats.  1916,  §  971, 
p.  536.) 

§  5.  (Formerly  §  715,  Rev.  Stats.)  The  district  court  for  each  dis- 
trict may  appoint  a  crier  for  the  court ;  and  the  marshal  may  appoint  such 
number  of  persons,  not  exceeding  five,  as  the  judge  may  determine,  to  wait 
upon  the  grand  and  other  juries,  and  for  other  necessary  purposes.  (36 


THE  JUDICIAL  CODE. 

Stats.  1088;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  819;  1  U.  S.  Comp.  Stats.  1916, 
§  972,  p.  537.) 

§  6.  (Re-enactment  of  §  562,  Rev.  Stats.)  The  records  of  a  district 
court  shall  be  kept  at  the  place  where  the  court  is  held.  When  it  is  held 
at  more  than  one  place  in  any  district  and  the  place  of  keeping  the  records 
is  not  specially  provided  by  law,  they  shall  be  kept  at  either  of  the  places 
of  holding  the  court  which  may  be  designated  by  the  district  judge.  (36 
Stats.  1088;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  819;  1  U.  S.  Comp.  Stats.  1916, 
§  973,  p.  537.) 

§  7.  (Re-enacting  §  573,  Rev.  Stats.)  No  action,  suit,  proceeding,  or 
process  in  any  district  court  shall  abate  or  be  rendered  invalid  by  reason 
of  any  act  changing  the  time  of  holding  such  court,  but  the  same  shall  be 
deemed  to  be  returnable  to,  pending,  and  triable  in  the  terms  established 
next  after  the  return  day  thereof.  (36  Stats.  1088;  4  Fed.  Stats.  Ann., 
2d  ed.,  p.  820;  1  U.  S.  Comp.  Stats.  1916,  §  974;  McGlashan  v.  United 
States,  71  Fed.  434,  18  C.  C.  A.  172.) 

§  8.  (Re-enacting  §  746,  Rev.  Stats.)  When  the  trial  or  hearing  of 
any  cause,  civil  or  criminal,  in  a  district  court  has  been  commenced  and  is 
in  progress  before  a  jury  or  the  court,  it  shall  not  be  stayed  or  discon- 
tinued by  the  arrival  of  the  time  fixed  by  law  for  another  session  of  said 
court;  but  the  court  may  proceed  therein  and  bring  it  to  a  conclusion  in 
the  same  manner  and  with  the  same  effect  as  if  another  stated  term  of  the 
court  had  not  intervened.  (36  Sfats.  1088;  4  Fed.  Stats.  Ann.,  2d  ed., 
p.  820;  1  U.  S.  Comp.  Stats.  1916,  §  975.) 

It  has  been  held  that  a  trial  is  commenced  when  the  term  ends,  although  a 
full  jury  has  not  been  impaneled.  United  States  v.  Loughery,  13  Blatchf.  267, 
26  Fed.  Cas.  No.  15,631. 

§  9.  The  district  courts,  as  courts  of  admiralty  and  as  courts  of  equity, 
shall  be  deemed  always  open  for  the  purpose  of  filing  any  pleading,  of 
issuing  and  returning  mesne  and  final  process,  and  of  making  and  directing 
all  interlocutory  motions,  orders,  rules,  and  other  proceedings  preparatory 
to  the  hearing,  upon  their  merits,  of  all  causes  pending  therein.  Any  dis- 
trict judge  may,  upon  reasonable  notice  to  the  parties,  make,  direct,  and 
award,  at  chambers  or  in  the  clerk's  office,  and  in  vacation  as  well  as  in 
term,  all  such  process,  commissions,  orders,  rules,  and  other  proceedings, 
whenever  the  same  are  not  grnntable  of  course,  according  to  the  rules  and 
practice  of  the  court.  (36  Stats.  1088;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  821; 
1  U.  S.  Comp.  Stats.  1916,  §  976.) 


664:  APPENDIX. 


Re-enacting  §  574,  Rev.  Stats.  Same  as  Equity  Rule  1,  omitting  tne  words 
"as  courts  of  admiralty  and."  McDowell  v.  United  States,  159  U.  S.  596,  600, 
40  L.  Ed.  271,  273,  16  Sup.  Ot.  Ill ;  Central  Trust  Co.  v.  Sheffield  &  Birming- 
ham Coal,  I.  R.  Co.,  60  Fed.  9;  Butler  v.  United  States,  87  Fed.  655.  In  gen- 
eral, United  States  v.  Finnell,  185  U.  S.  236,  46  L.  Ed.  890.  22  Sup.  Ct.  633; 
United  States  v.  Marvin,  212  U.  8.  275,  53  L.  Ed.  510,  29  Sup.  Ct.  297. 

§  10.  (Re-enacting  without  change,  Rev.  Stats.  §  578.)  District  courts 
shall  hold  monthly  adjournments  of  their  regular  terms,  for  the  trial  of 
criminal  causes,  when  their  business  requires  it  to  be  done,  in  order  to 
prevent  undue  expenses  and  delays  in  such  cases.  (36  Stats.  1088;  4  Fed. 
Stats.  Ann.,  2d  ed.,  p.  825;  1  U.  S.  Comp.  Stats.  1916,  §  977.) 

In  general,  Pitman  v.  United  States,  45  Fed.  159.  Adjournment  may  be 
after  prior  adjournment  by  the  judge.  Clerk  entitled  to  fees  for  attendance  on 
day  of  adjournment. 

§  11.  (Re-enacting  §  581,  Rev.  Stats.)  A  special  term  of  any  district 
court  may  be  held  at  the  same  place  where  any  regular  term  is  held,  or  at 
such  other  place  in  the  district  as  the  nature  of  the  business  may  require, 
and  at  such  time  and  upon  such  notice  as  may  be  ordered  by  the  district 
judge.  Any  business  may  be  transacted  at  such  special  term  which  might 
be  transacted  at  a  regular  term.  (36  Stats.  1088;  4  Fed.  Stats.  Ann., 
2d  ed.,  p.  825;  1  U.  S.  Comp.  Stats.  1916,  §  978.) 

Butler  v.  United  States,  87  Fed.  655;  United  States  v.  Kessel,  63  Fed. 
433.  Orders  made  in  chambers.  United  States  v.  The  Schooner  Little 
Charles,  1  Brock.  (U.  S.)  380,  26  Fed.  Gas.  No.  15,613.  In  general.  Amer- 
ican Railroad  Co.  of  Porto  Rico  v.  Castro,  204  U.  S.  453,  51  L.  Ed.  564, 
27  Sup.  Ct.  466;  Goll  v.  United  States,  151  Fed.  412,  80  C.  C.  A.  642. 

§  12.  (Re-enacting  §  583,  Rev.  Stats.)  If  the  judge  of  any  district 
court  is  unable  to  attend  at  the  commencement  of  any  regular,  adjourned, 
or  special  term,  or  any  time  during  such  term,  the  court  may  be  adjourned 
by  the  marshal,  or  clerk,  by  virtue  of  a  written  order  directed  to  him  by 
the  judge,  to  the  next  regular  term,  or  to  any  earlier  day,  as  the  order  may 
direct.  (36  Stats.  1088;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  825;  1  U.  S. 
Comp.  Stats.  1916,  §  979.) 

§13.  ( Combining  §  591,  Rev.  Stats.;  34  Stats.  1417,  and  amendment 
thereto,  which  are  repealed  by  §  297,  Jud.  Code.)  When  any  district 
judge  is  prevented,  by  any  disability,  from  holding  any  stated  or  ap- 
pointed term  of  his  district  court,  and  that  fact  is  made  to  appear  by  the 
certificate  of  the  clerk,  under  the  seal  of  the  court,  to  any  circuit  judge  of 
the  circuit  in  which  the  district  lies,  or,  in  the  absence  of  all  the  circuit 
judges,  to  the  circuit  justice  of  the  circuit  in  which  the  district  lies,  any 


THE  JUDICIAL  CODE.  665 

such  circuit  judge  or  justice  may,  if  in  his  judgment  the  public  interests 
so  require,  designate  and  appoint  the  judge  of  any  other  district  in  the 
same  circuit  to  hold  said  court,  and  to  discharge  all  the  judicial  duties  of 
the  judge  so  disabled,  during  such,  disability.  Whenever  it  shall  be  certi- 
fied by  any  such  circuit  judge  or,  in  his  absence,  by  the  circuit  justice  of 
the  circuit  in  which  the  district  lies,  that  for  any  sufficient  reason  it  is 
impracticable  to  designate  and  appoint  a  judge  of  another  district  within 
the  circuit  to  perform  the  duties  of  such  disabled  judge,  the  chief  justice 
may,  if  in  his  judgment  the  public  interests  so  require,  designate  and  ap- 
point the  judge  of  any  district  in  another  circuit  to  hold  said  court  and  to 
discharge  all  the  judicial  duties  of  the  judge  so  disabled,  during  such  dis- 
ability. Such  appointment  shall  be  filed  in  the  clerk's  office,  and  entered 
on  the  minutes  .of  the  said  district  court,  and  a  certified  copy  thereof,  un- 
der the  seal  of  the  court,  shall  be  transmitted- by  the  clerk  to  the  judge  so 
designated  and  appointed.  (36  Stats.  1089;  4  Fed.  Stats.  Ann.,  2d  ed., 
p.  826;  1  U.  S.  Comp.  Stats.  1916,  §  980.) 

Filing  the  paper  is  not  necessary  to  the  validity  of  the  appointment  of  the 
judge.  National  Home  of  Soldiers  v.  Butler  (C.  C.),  33  Fed.  374,  see  also  The 
Alaska  (C.  C.),  35  Fed.  555,  557.  This  power  does  not  extend  to  the  case*  of  a 
vacancy.  9  Op.  Atty.  Gen.  131.  See  §  603,  Rev.  Stats.  Appointment'  not  sub- 
ject to  collateral  attack.  Ball  v.  United  States,  140  U.  S.  118,  35  L.  Ed.  377, 
11  Sup.  Ct.  761.  Appointee  may  extend  time  for  filing  return  to  writ  of 
error.  Hall  v.  McKinnon,  193  Fed.  572,  113  C.  C.  A.  440.  Acts  of  desig- 
nated judge.  McDowell  v.  United  States,  159  U.  S.  596,  40  L.  Ed.  271,  16 
Sup.  Ct.  111.  May  v.  United  States,  199  Fed.  53,  117  C.  C.  A.  431;  Chees- 
man  v.  Hart  (C.  C.),  42  Fed.  98;  Gay  v.  Hudson  Eiver  El.  Power  Co. 
(C.  C.),  190  Fed.  812. 

§  14.  (Drawn  from  §  592,  Rev.  Stats.,  36  Stats.  1089,  which  section  is 
repealed  by  §  297,  Jud.  Code.)  When,  from  the  accumulation  or  urgency  of 
business  in  any  district  court,  the  public  interests  require  the  designation 
and  appointment  hereinafter  provided,  and  the  fact  is  made  to  appear,  by 
the  certificate  of  the  clerk,  under  the  seal  of  the  court,  to  any  circuit  judge 
of  the  circuit  in  which  the  district  lies,  or,  in  the  absence  of  all  the  circuit 
judges,  to  the  circuit  justice  of  the  circuit 'in  which  the  district  lies,  such 
circuit  judge  or  justice  may  designate  and  appoint  the  judge  of  any  other 
district  in  the  same  circuit  to  have  and  exercise  within  the  district  first 
named  the  same  powers  that  are  vested  in  the  judge  thereof.  Each  of  the 
said  district  judges  may,  in  case  of  such  appointment,  hold  separate!}'  at 
the  same  time  a  district  court  in  such  district,  and  discharge  all  the  judicial 
duties  of  the  district  judge  therein.  (36  Stats.  1089;  4  Fed.  Stats.  Ann., 
2d  ed.,  p.  828;  1  U.  S.  Comp.  Stats.  1916,  §  981.) 

In  general,  McDowell  v.  United  States,  159  U.  S.  596,  40  L.  Ed.  271,  16 
Sup.  Ct.  111.  Not  subject  to  collateral  attack.  Ex  parte  United  States, 


666  APPENDIX. 

226  U.  S.  420,  57  L.  Ed.  281,  33  Sup.  Ct.  170.  See  In  re  Manning,  139 
U.  S.  504,  35  L.  Ed.  264,  11  Sup.  Ct.  624;  Ball  v.  United  States,  140  U.  S. 
118,  35  L.  Ed.  377,  11  Sup.  Ct.  761.  McDowell  v.  United  States,  159  U.  S. 
596,  40  L.  Ed.  271,  16  Sup.  Ct.  111.  As  to  filing  of  appointment,  see  National 
Home  for  Soldiers  v.  Butler,  33  Fed.  374, 

§  15.  (Superseding  §  593,  Rev.  Stats.)  If  all  the  circuit  judges  and 
the  circuit  justice  are  absent  from  the  circuit,  or  are  unable  to  execute  the 
provisions  of  either  of  the  two  preceding  sections,  or  if  the  district  judge 
so  designated  is  disabled  or  neglects  to  hold  the  court  and  transact  the  busi- 
ness for  which  he  is  designated,  the  clerk  of  the  district  court  shall  certify 
the  fact  to  the  Chief  Justice  of  the  United  States,  who  may  thereupon 
designate  and  appoint  in  the  manner  aforesaid  the  judge  of  any  district 
within  such  circuit  or  within  any  other  circuit;  and  said  appointment  shall 
be  transmitted  to  the  clerk  .and  be  acted  upon  by  him  as  directed  in  the 
preceding  section.  (36  Stats.  1089;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  828; 
1  U.  S.  Comp.  Stats.  1916,  §  982.) 

§16.  (Superseding  §  593,  Rev.  Stats.)  Any  such  circuit  judge,  or  cir- 
cuit justice,  or  the  Chief  Justice,  as  the  case  may  be,  may,  from  time  to 
time,  if  in  his  judgment  the  public  interests  so  require,  make  a  new  desig- 
nation and  appointment  of  any  other  district  judge,  in  the  manner,  for  the 
duties,  and  with  the  powers  mentioned  in  the  three  preceding  sections,  and 
revoke  any  previous  designation  and  appointment.  (36  Stats.  1089; 
4  Fed.  Stats.  Ann.,  2d  ed.,  p.  828;  1  U.  S.  Comp.  Stats.  1916,  §  983.) 

§  17.  (Superseding  §  596,  Rev.  Stats.)  It  shall  be  the  duty  of  the 
senior  circuit  judge  then  present  in  the  circuit,  whenever  in  his  judgment 
the  public  interest  so  requires,  to  designate  and  appoint,  in  the  manner 
and  with  the  powers  provided  in  section  fourteen,  the  district  judge  of  any 
judicial  district  within  his  circuit  to  hold  a  district  court  in  the  place  or  in 
aid  of  any  other  district  judge  within  the  same  circuit.  (36  Stats.  1098; 
4  Fed.  Stats.  Ann.,  2d  ed.,  p.  829;  1  U.  S.  Comp.  Stats.  1916,  §  984.) 

McDowell  v.  United  States,  159  U.  S.  596,  40  L.  Ed.  271,  16  Sup.  Ct.  111. 
Ball  v.  United  States,  140  U.  S.  118,  35  L.  Ed,  377,  11  Sup.  Ct.  761. 

§  18.  (New.  Amendment,  Act  October  3,  1913,  c.  18.)  Whenever,  in 
the  judgment  of  the  senior  circuit  judge  of  the  circuit  in  which  the  district 
lies,  or  of  the  circuit  justice  assigned  to  such-circuit,  or  of  the  Chief  Justice, 
the  public  interest  shall  require,  the  said  judge,  or  associate  justice,  or 
Chief  Justice,  shall  designate  and  appoint  any  circuit  judge  of  the  circuit 
to  hold  said  district  court.  •  . 


THE  JUDICIAL  CODE.  667 

Whenever  it  shall  be  certified  by  the  senior  circuit  judge  of  the  second 
circuit,  or,  in  his  absence,  by  the  circuit  justice  of  said  circuit,  that  on 
account  of  the  accumulation  or  urgency  of  business  in  any  district  court  in 
said  circuit  it  is  impracticable  to  designate  and  appoint  a  sufficient  number 
of  district  judges  in  other  districts  within  said  circuit  to  relieve  such 
accumulation  or  urgency  of  business,  the  Chief  .Justice  may,  if  in  his  judg- 
ment the  public  interests  so  require,  designate  and  appoint  the  judge  of  any 
district  court  in  another  circuit  to  hold  a  district  court  within  said  second 
circuit,  and  to  have  and  exercise  within  said  district  to  which  he  is  so 
assigned  the  same  powers  that  are  vested  in  the  judge  thereof:  Provided, 
That  said  judge  so  designated  and  appointed  shall  have  consented,  in  writ- 
ing, to  such  designation  and  appointment :  And  provided  further,  That  the 
senior  circuit  judge  of  the  circuit  within  which  such  judge  so  designated  and 
appointed  resides  shall  certify,  in  writing,  that  the  business  of  the  district  of 
such  judge  will  not  suffer  thereby.  Such  appointment  shall  be  filed  in  the 
clerk's  office  and  entered  on  the  minutes  of  said  district  court,  and  a  certified 
copy  thereof,  under  the  seal  of  the  court,  shall  be  transmitted  by  the  clerk  to 
the  judge  so  designated  and  appointed.  Each  of  said  district  judges  may, 
in  case  of  such  appointment,  hold  separately,  at  the  same  time,  a  district 
court  in  such  district,  and  discharge  all  of  the  judicial  duties  of  the  dis- 
trict judge  therein.  (38  Stats.  203;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  829; 
1  U.  S.  Comp.  Stats.  1916,  §  985.) 

§  19.  (Drawn  from  §  595,  Rev.  Stats.)  It  shall  be  the  duty  of  the 
district  or  circuit  judge  who  is  designated  and  appointed  undqf  either  of 
the  six  preceding  sections,  to  discharge  all  the  judicial  duties  for  which 
he  is  so  appointed,  during  the  time  for  which  he  is  so  appointed ;  and  all 
the  acts  and  proceedings  in  the  courts  held  by  him,  or  by  or  before  him, 
in  pursuance  of  said  provisions,  shall  have  the  same  effect  and  validity  as 
if  done  by  or  before  the  district  judge  of  the  said  district.  (36  Stats. 
1090;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  830;  1  U.  S.  Corap.  Stats.  1916,  §  986.) 

§  20.  (Superseding  §  601,  Rev.  Stats.)  Whenever  it  appears  that  the 
judge  of  any  district  court  is  in  any  way  concerned  in  interest  in  any  suit 
pending  therein,  or  has  been  of  counsel  or  is  a  material  witness  for  either 
party,  or  is  so  related  to  or  connected  with  either  party  as  to  render  it 
improper,  in  his  opinion,  for  him  to  sit  on  the  trial,  it  shall  be  his  duty, 
on  application  by  either  party,  to  cause  the  fact  to  be  entered  on  the 
records  of  the  court;  and  also  an  order  that  an  authenticated  copy  thereof 
shall  be  forthwith  certified  to  the  senior  dircuit  judge  for  said  circuit  then 
present  in  the  circuit;  and  thereupon  such  proceedings  shall  be  had  as  are 


668  APPENDIX. 

provided  in  section  fourteen.     (36  Stats.  1090;  4  Fed.  Stats.  Ann.,  2d  ed., 
p.  831;  1  U.  S.  Comp.  Stats.  1916,  §  987.) 

§  21.  (New  legislation.)  Whenever  a  party  to  any  action  or  pro- 
ceeding, civil  or  criminal,  shall  make  and  file  an  affidavit  that  the 
judge  before  whom  the  action  or  proceeding  is  to  be  tried  or  heard 
has  a  personal  bias  or  prejudice  either  against  him  or  in  favor  of  any 
opposite  party  to  the  suit,  such  judge  shall  proceed  no  further  therein, 
but  another  judge  shall  be  designated  in  the  manner  prescribed  in  the  sec- 
tion last  preceding,  or  chosen  in  the  manner  prescribed  in  section  twenty- 
three,  to  hear  such  matter.  Every  such  affidavit  shall  state  the  facts  and 
the  reasons  for  the  belief  that  such  bias  or  prejudice  exists,  and  shall  be 
filed  not  less  than  ten  days  before  the  beginning  of  the  term  of  the  court, 
or  good  cause  shall  be  shown  for  the  failure  to  file  it  within  such  time. 
No  party  shall  be  entitled  in  any  case  to  file  more  than  one  such  affidavit ; 
and  no  such  affidavit  shall  be  filed  unless  accompanied  by  a  certificate  of 
counsel  of  record  that  such  affidavit  and  application  are  made  in  good 
faith.  The  same  proceedings  shall  be  had  when  the  presiding  judge  shall 
file  with  the  clerk  of  the  court  a  certificate  that  he  deems  himself  unable 
for  any  reason  to  preside  with  absolute  impartiality  in  the  pending  suit 
or  action.  (36  Stats.  1090;  4  Fed.  Stats.  Ann.,  2d  ed.,  p.  832;  I  U.  S. 
Comp.  Stats.  1916,  §  988.) 

In  general,  Glascow  v.  Moyer,  225  U.  S.  420,  56  L.  Ed.  1147,  32  Sup.  Ct. 
753.  The  mere  filing  of  the  affidavit  does  not  disqualify  the  judge.  Ex  parte 
N.  K.  Fairbanks  Co.,  194  Fed.  978. 

§  22.  (Re-enacting  §  602,  Rev.  Stats.)  When  the  office  of  judge  of 
any  district  court  becomes  vacant,  all  process,  pleadings,  and  proceedings 
pending  before  such  court  shall,  if  necessary,  be  continued  by  the  clerk 
thereof  until  such  times  as  a  judge  shall  be  appointed,  or  designated  to 
hold  such  court;  and  the  judge  so  designated,  while  holding  such  court, 
shall  possess  the  powers  conferred  by,  and  be  subject  to  the  provisions 
contained  in,  section  nineteen.  (36  Stats.  1090;  4  Fed.  Stats.  Ann.,  2d  ed., 
p.  837;  1  U.  S.  Comp.  Stats.  1916,  §  989.) 

In  general,  Ball  v.  United  States,  140  U.  S.  118,  35  L.  Ed.  377,  11  Sup.  Ct. 
761. 

§  23.  (Drawn  from  Act  of  Feb.  20,  1907,  c.  2073,  §  2 ;  Act  of  March 
2,  1907,  c.  2575,  §  2,  34  Stats.  1253 ;  Act  of  March  2,  1909 ;  and  the  Act  of 
Feb.  24,  1910,  c.  56,  §  3,  36  Stats.  202.)  In  districts  having  more  than 
one  district  judge,  the  judges  may  agree  upon  the  division  of  business  and 


THE  JUDICIAL  CODE. 


669 


assignment  of  cases  for  trial  in  said  district;  but  in  case  they  do  not  so 
agree,  the  senior  circuit  judge  of  the  circuit  in  which  the  district  lies,  shall 
make  all  necessary  orders  for  the  division  of  business  and  the  assignment 
of  cases  for  trial  in  said  district.  (36  Stats.  1090;  4  Fed.  Stats.  Ann., 
2d  ed.,  p.  838 ;  1  U.  S.  Comp.  Stats.  1916,  §  990.  Concurrent  authority 
of  judges.  In  re  Steele,  156  Fed.  853;  In  re  Steele,  162  Fed.  694.) 


CHAPTER  TWO. 

DISTRICT  COURTS — JURISDICTION. 


SEO. 

24.  Original  jurisdiction. 

Par.  1.  Where        the        United 

States   are  plaintiffs; 

and   of   civil  suits   at 

common     law     or     in 

equity. 

2.  Of  crimes  and  offenses. 

3.  Of     admiralty     causes, 

seizures,  and  prizes. 

4.  Of  suits  under  any  law 

relating  to  the  slave 
trade. 

5.  Of    cases    under    inter- 

nal revenue,  customs, 
and  tonnage  laws. 

6.  Of    suits    under    postal 

laws. 

7.  Of     suits     under     the 

patent,  the  copy- 
right, and  the  trade- 
mark laws. 

8.  Of    suits    for    violation 

of  interstate  com- 
merce laws. 

9.  Of    penalties    and    for- 

feitures. 

10.  Of  suits  on  debentures. 

11.  Of     suits     for     injuries 

on  account  of  acts 
done  under  laws  of 
the  United  States. 

12.  Of      suits      concerning 

civil  rights. 

13.  Of    suits    against,  per- 

sons having  knowl- 
edge of  conspiracy, 
etc. 

14.  Of     suits     to     redress 

the  deprivation,  un- 
der color  of  law,  of 
civil  rights. 


SEC. 

24.  Original    jurisdiction — Cont'd. 

Par.  15.  Of     suits     to     recover 
certain  offices. 

16.  'Of    suits    against    na- 

tional-banking    asso- 
ciations. 

17.  Of  suits  by  aliens  for 

torts. 

18.  Of   suits   against   con- 

suls    and     vice-con- 
suls. 

19.  Of  suits  and  proceed- 

ings   in    bankruptcy. 

20.  Of    suits    against    the 

United  States. 

21.  Of   suits    for   the   un- 

lawful   inclosure    of 
public  lands. 

22.  Of  suits   under  immi- 

gration and  contract- 
labor  laws. 

23.  Of  suits  against  trusts, 

monopolies,    and    un- 
lawful   combinations. 

24.  Of      suits     concerning 

allotments  of  land  to 
Indians. 

25.  Of       partition       suits 

where  United   States 
is  joint  tenant. 

25.  Appellate  jurisdiction  under  Chi- 

nese-exclusion laws. 

26.  Appellate    jurisdiction    over    Yel- 

lowstone National  Park. 

27.  Jurisdiction  of  crimes  on   Indian 

reservations  in  South  Dakota. 


670  APPENDIX. 

§  24.     The  district  courts  shall  have  original  jurisdiction  as  follows: 

First.  Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity, 
brought  by  the  United  States,  or  by  any  officer  thereof  authorized  by  law 
to  sue,  or  between  citizens  of  the  same  state  claiming  lands  under  grants 
from  different  states;  or,  where  the  matter  in  controversy  exceeds,  ex- 
clusive of  interest  and  costs,  the  sum  or  value  of  three  thousand  dollars, 
and  (a)  arises  under  the  Constitution  or  laws  of  the  United  States,  or 
treaties  made,  or  which  shall  be  made,  under  their  authority,  or  (b)  is 
between  citizens  of  different  states,  or  (c)  is  between  citizens  of  a  state 
and  foreign  states,  citizens,  or  subjects.  No  district  court  shall  have 
cognizance  of  any  suit  (except  upon  foreign  bills  of  exchange)  to  recover 
upon  any  promissory  note  or  other  chose  in  action  in  favor  of  any  as- 
signee, or  of  any  subsequent  holder  if  such  instrument  be  payable  to  bearer 
and  be  not  made  by  any  corporation,  unless  such  suit  might  have  been 
prosecuted  in  such  court  to  recover  upon  said  note  or  other  chose  in  action 
if  no  assignment  had  been  made :  Provided,  however,  That  the  foregoing, 
provision  as  to  the  sum  or  value  of  the  matter  in  controversy  shall  not 
be  consti'ued  to  apply  to  any  of  the  cases  mentioned  in  the  succeeding 
paragraphs  of  this  section. 

Second.  Of  all  crimes  and  offenses  cognizable  under  the  authority  of 
the  United  States. 

Third.  Of  all  civil  cavises  of  admiralty  and  maritime  jurisdiction,  sav- 
ing to  suitors  in  all  cases  the  right  of  a  common-law  remedy  where  the 
common  law  is  competent  to  give  it,  and  to  claimants  the  rights  and  reme- 
dies under  the  workmen's  compensation  law  of  any  state;  of  all  seizures 
on  land  or  waters  not  within  admiralty  and  maritime  jurisdiction;  of  all 
prizes  brought  into  the  United  States;  and  of  all  proceedings  for  the 
condemnation  of  property  taken  as  prize.  (As  amended  §  1,  Act  Oct.  6, 
1917,  c. ;  Pamphlet  Supp.  Fed.  Stats.  Ann.  No.  12,  p.  85.) 

Fourth.     Of  all  suits  arising  under  any  law  relating  to  the  slave  trade. 

Fifth.  Of  all  cases  arising  under  any  law  providing  for  internal 
revenue,  or  from  revenue  from  imports  or  tonnage,  except  those  cases 
arising  under  any  law  providing  revenue  from  imports,  jurisdiction  of 
which  has  been  conferred  upon  the  court  of  customs  appeals. 

Sixth.     Of  all  cases  arising  under  the  postal  laws. 

Seventh.  Of  all  suits  at  law  or  in  equity  arising  under  the  patent,  the 
copyright,  and  the  trade-mark  laws. 

Eighth.  Of  all  suits  and  proceedings  arising  under  any  law  regulating 
commerce,  except  those  suits  and  proceedings  exclusive  jurisdiction  of 
which  has  been  conferred  upon  the  commerce  court. 

Ninth.  Of  all  suits  and  proceedings  for  the  enforcement  of  penalties 
and  forfeitures  incurred  under  any  law  of  the  United  States. 


THE  JUDICIAL  CODE.  671 

Tenth.  Of  all  suits  by  the  assignee  of  any  debenture  for  drawback  of 
duties,  issued  under  any  law  for  the  collection  of  duties,  against  the  per- 
son to  whom  such  debenture  was  originally  granted,  or  against  any  indorser 
thereof,  to  recover  the  amount  of  such  debenture. 

Eleventh.  Of  all  suits  brought  by  any  person  to  recover  damages  for 
any  injury  to  his  person  or  property  on  account  of  any  act  done  by  him, 
under  any  law  of  the  United  States,  for  the  protection  or  collection  of 
any  of  the  revenues  thereof,  or  to  enforce  the  right  of  citizens  of  the 
United  States  to  vote  in  the  several  states. 

Twelfth.  Of  all  suits  authorized  by  law  to  be  brought  by  any  person 
for  the  recovery  of  damages  on  account  of  any  injury  to  his  person  or 
property,  or  of  the  deprivation  of  any  right  or  privilege  of  a  citizen  of 
the  United  States,  by  any  act  done  in  furtherance  of  any  conspiracy 
mentioned  in  section  nineteen  hundred  and  eighty,  Revised  Statutes. 

Thirteenth.  Of  all  suits  authorized  by  law  to  be  brought  against  any 
person  who,  having  knowledge  that  any  of  the  wrongs  mentioned  in  section 
nineteen  hundred  and  eighty,  Revised  Statutes,  are  about  to  be  done,  and, 
having  power  to  prevent  or  aid  in  preventing  the  same,  neglects  or  refuses 
so  to  do,  to  recover  damages  for  any  such  wrongful  act. 

Fourteenth.  Of  all  suits  at  law  or  in  equity  authorized  by  law  to  be 
brought  by  any  person  to  redress  the  deprivation,  under  color  of  any  law, 
statute,  ordinance,  regulation,  custom,  or  usage  of  any  state,  of  any  right, 
privilege,  or  immunity,  secured  by  the  Constitution  of  the  United  States, 
or  of  any  right  secured  by  any  law  of  the  United  States  providing  for 
equal  rights  of  citizens  of  the  United  States,  or  of  all  persons  within  the 
jurisdiction  of  the  United  States. 

Fifteenth.  Of  all  suits  to  recover  possession  of  any  office,  except  that 
of  elector  of  President  or  Vice-President,  Representative  in  or  Delegate  to 
Congress,  or  member  of  a  state  legislature,  authorized  by  law  to  be  brought, 
wherein  it  appears  that  the  sole  question  touching  the  title  to  such  office 
arises  out  of  the  denial  of  the  right  to  vote  to  any  citizen  offering  to  vote, 
on  account  of  race,  color,  or  previous  condition  of  servitude;  Provided, 
That  such  jurisdiction  shall  extend  only  so  far  as  to  determine  the  rights 
of  the  parties  to  such  office  by  reason  of  the  denial  of  the  right  guaranteed 
by  the  Constitution  of  the  United  States,  and  secured  by  any  law,  to  en- 
force the  right  of  citizens  of  the  United  States  to  vote  in  all  the  states. 

Sixteenth.  Of  all  cases  commenced  by  the  United  States,  or  by  direction 
of  any  officer  thereof,  against  any  national  banking  association,  and  cases 
for  winding  up  the  affairs  of  any  such  bank;  and  of  all  suits  brought  by 
any  banking  association  established  in  the  district  for  which  the  court  is 
held,  under  the  provisions  of  title  "National  Banks,"  Revised  Statutes,  to 


672  APPENDIX. 

enjoin  the  Comptroller  of  the  Currency,  or  any  receiver  acting  under  his 
direction,  as  provided  by  said  title.  And  all  national  banking  associations 
established  under  the  laws  of  the  United  States  shall,  for  the  purposes  of 
all  other  actions  by  or  against  them,  real,  personal,  or  mixed,  and  all  suits 
in  equity,  be  deemed  citizens  of  the  states  in  which  they  are  respectively 
located. 

Seventeenth.  Of  all  suits  brought  by  any  alien  for  a  tort  only,  in  viola- 
tion of  the  laws  of  nations  or  of  a  treaty  of  the  United  States. 

Eighteenth.     Of  all  suits  against  consuls  and  vice    consuls. 

Nineteenth.     Of  all  matters  and  proceedings  in  bankruptcy. 

Twentieth.  Concurrent  with  the  court  of  claims,  of  all  claims  not  ex- 
ceeding ten  thousand  dollars  founded  upon  the  Constitution  of  the  United 
States  or  any  law  of  Congress,  or  upon  any  regulation  of  an  Executive 
Department,  or  upon  any  contract,  express  or  implied,  with  the  govern- 
ment of  the  United  States,  or  for  damages,  liquidated  or  unliquidated,  in 
cases  not  sounding  in  tort,  in  respect  to  which  claims  the  party  would  be 
entitled  to  redress  against  the  United  States,  either  in  a  court  of  law, 
equity,  or  admiralty,  if  the  United  States  were  suable,  and  of  all  set-offs, 
counterclaims,  claims  for  damages,  whether  liquidated  or  unliquidated,  or 
other  demands  whatsoever  on  the  part  of  the  government  of  the  United 
States  against  any  claimant  against  the  government  in  said  court:  Pro- 
vided, however,  That  nothing  in  this  paragraph  shall  be  construed  as  giving 
to  either  the  district  courts  or  the  court  of  claims  jurisdiction  to  hear 
and  determine  claims  growing  out  of  the  late  Civil  War,  and  commonly 
known  as  "war  claims,"  or  to  hear  and  determine  other  claims  which  had 
been  rejected  or  reported  on  adversely  prior  to  the  third  day  of  March, 
eighteen  hundred  and  eighty-seven,  by  any  court,  department,  or  commis- 
sion authorized  to  hear  and  determine  the  same,  or  to  hear  and  determine 
claims  for  pensions ;  or  as  giving  to  the  district  courts  jurisdiction  of  cases 
brought  to  recover  fees,  salary,  or  compensation  for  official  services  of 
officers  of  the  United  States  or  brought  for  such  purpose  by  persons 
claiming  as  such  officers  or  as  assignees  or  legal  representatives  thereof; 
but  no  suit  pending  on  the  twenty-seventh  day  of  June,  eighteen  hundred 
and  ninety-eight,  shall  abate  or  be  affected  by  this  provision:  And  pro- 
vided further,  That  no  suit  against  the  government  of  the  United  States 
shall  be  allowed  under  this  paragraph  unless  the  same  shall  have  been 
brought  within  six  years  after  the  right  accrued  for  which  the  claim  is 
made:  Provided,  That  the  claims  of  married  women,  first  accrued  during 
marriage,  of  persons  under  the  age  of  twenty-one  years,  first  accrued 
during  minority,  and  of  idiots,  lunatics,  insane  persons,  and  persons  be- 
yond the  seas  at  the  time  the  claim  accrued,  entitled  to  the  claim,  shall 


THE  JUDICIAL  CODE.  673 

not  be  barred  if  the  suit  be  brought  within  three  years  after  the  dis- 
ability has  ceased;  but  no  other  disability  than  those  enumerated  shall 
prevent  any  claim  from  being  barred,  nor  shall  any  of  the  said  disabilities 
operate  cumulatively.  All  suits  brought  and  tried  under  the  provisions 
of  this  paragraph  shall  be  tried  by  the  court  without  a  jury. 

Twenty-first.  Of  proceedings  in  equity,  by  writ  of  injunction,  to  re- 
strain violations  of  the  provisions  of  laws  of  the  United  States  to  prevent 
the  unlawful  inclosure  of  public  lands;  and  it  shall  be  sufficient  to  give 
the  court  jurisdiction  if  service  of  original  process  be  had  in  any  civil 
proceeding  on  any  agent  or  employee  having  charge  or  control  of  the 
inclosure. 

Twenty-second.  Of  all  suits  and  proceedings  arising  under  any  law 
regulating  the  immigration  of  aliens,  or  under  the  contract  labor  laws. 

Twenty-third.  Of  all  suits  and  proceedings  arising  under  any  law  to 
protect  trade  and  commerce  against  restraints  and  monopolies. 

Twenty-fourth.  Of  all  actions,  suits,  or  proceedings  involving  the 
right  of  any  person,  in  whole  or  in  part  of  Indian  blood  or  descent,  to 
any  allotment  of  land  under  any  law  or  treaty. 

And  the  judgment  or  decree  of  any  such  court  in  favor  of  any  claimant 
to  an  allotment  of  land  shall  have  the  same  effect,  when  properly  certified 
to  the  Secretary  of  the  Interior,  as  if  such  allotment  had  been  allowed 
and  approved  by  him;  but  this  provision  shall  not  apply  to  any  lands 
now  or  heretofore  held  by  either  of  the  Five  Civilized  Tribes,  the  Osage 
Nation  of  Indians,  nor  to  any  of  the  lands  within  the  Quapaw  Indian 
Agency :  Provided,  That  the  right  of  appeal  shall  be  allowed  to  either 
party  as  in  other  cases.  (37  Stats.  46.) 

Twenty-fifth.  Of  suits  in  equity  brought  by  any  tenant  in  common  or 
joint  tenant  for  the  partition  of  lands  in  cases  where  the  United  States 
is  one  of  such  tenants  in  common  or  joint  tenants,  such  suits  to  be  brought 
in  the  district  in  which  such  land  is  situate.  (4  Fed.  Stats.  Ann.,  2d  ed., 
p.  838.) 

§  25.  The  district  courts  shall  have  appellate  jurisdiction  of  the  judg- 
ments and  orders  of  United  States  commissioners  in  cases  arising  under 
the  Chinese  exclusion  laws. 

§  26.  The  district  court  for  the  district  of  Wyoming  shall  have  juris- 
diction of  all  felonies  committed  within  the  Yellowstone  National  Park 
and  appellate  jurisdiction  of  judgments  in  cases  of  conviction  before  the 
commissioner  authorized  to  be  appointed  under  section  five  of  an  act 
entitled  "An  Act  to  Protect  the  Birds  and  Animals  in  Yellowstone  National 

Manual — 48 


674 


APPENDIX. 


Park,   and  to  Punish  Crimes  in  said  Park,   and  for   Other  Purposes," 
approved  May  seventh,  eighteen  hundred  and  ninety-four. 

§  27.  The  district  court  of  the  United  States  for  the  district  of  South 
Dakota  shall  have  jurisdiction  to  hear,  try,  and  determine  all  actions  and 
proceedings  in  which  any  person  shall  be  charged  with  the  crime  of 
murder,  manslaughter,  rape,  assault  with  intent  to  kill,  arson,  burglary, 
larceny,  or  assault  with  a  dangerous  weapon,  committed  within  the  limits 
of  any  Indian  reservation  in  the  state  of  South  Dakota. 


CHAPTER  THREE. 


DISTRICT  COURTS — REMOVAL,  OP  CAUSES. 


ma 

28.  Removal   of   suits   from  state  to 

United    States    district    courts. 

29.  Procedure  for  removal. 

30.  Suits  under  grants  of  land  from 

different  states. 

31.  Eemoval    of    causes    against    per- 

sons   denied    any    civil    rights, 
etc. 

32.  When     petitioner     is     in     actual 

custody  of  state  court. 

33.  Suits    and    prosecutions    against 

revenue   officers,  etc. 


EEC. 

34.  Removal  of  suits  by  aliens. 

35.  When   copies   of   records   are   re- 

fused by  clerk  of  state  court. 

36.  Previous    attachment    bonds,    or- 

ders, etc.,  remain  valid. 

37.  Suits      improperly      in      district 

court  may  be  dismissed  or  re- 
manded. 

38.  Proceedings  in  suits  removed. 

39.  Time  for  filing  record;  return  of 

record,  how  enforced. 


§  28.  Any  suit  of  a  civil  nature,  at  law  or  in  equity,  arising  under 
the  Constitution  or  laws  of  the  United  States,  or  treaties  made,  or  which 
shall  be  made,  under  their  authority,  of  which  the  district  courts  of  the 
United  States  are  given  original  jurisdiction  by  this  title,  which  may  now 
be  pending  or  which  may  hereafter  be  brought,  in  any  state  court,  may 
be  removed  by  the  defendant  or  defendants  therein  to  the  district  court  of 
the  United  States  for  the  proper  district.  Any  other  suit  of  a  civil  nature, 
at  law  or  in  equity,  of  which  the  district  courts  of  the  United  States  are 
given  jurisdiction  by  this  title,  and  which  are  now  pending  or  which  may 
hereafter  be  brought,  in  any  state  court,  may  be  removed  into  the  district 
court  of  the  United  States  for  the  proper  district  by  the  defendant  or 
defendants  therein,  being  nonresidents  of  that  state.  And  when  in  any 
suit  mentioned  in  this  section  there  shall  be  a  controversy  which  is  wholly 
between  citizens  of  different  states,  and  which  can  be  fully  determined  as 
between  them,  then  either  one  or  more  of  the  defendants  actually  interested 
in  such  controversy  may  remove  said  suit  into  the  district  court  of  the 
United  States  for  the  proper  district.  And  where  a  suit  is  now  pending, 


THE  JUDICIAL,  CODE.  675 

or  may  hereafter  be  brought,  in  any  state  court,  in  which  there  is  a  con- 
troversy between  a  citizen  of  the  state  in  which  the  suit  is  brought  and  a 
citizen  of  another  state,  any  defendant,  being  such  citizen  of  another  state, 
may  remove  such  suit  into  the  district  court  of  the  United  States  for  the 
proper  district,  at  any  time  before  the  trial  thereof,  when  it  shall  be  made 
to  appear  to  said  district  court  that  from  prejudice  or  local  influe'ice  he 
will  not  be  able  to  obtain  justice  in  such  state  court,  or  in  any  other  state 
court  to  which  the  said  defendant  may,  under  the  laws  of  the  state,  have 
the  right,  on  account  of  such  prejudice  or  local  influence,  to  remove  said 
cause :  Provided,  That  if  it  further  appear  that  said  suit  can  be  fully  and 
justly  determined  as  to  the  other  defendants  in  the  state  court,  without 
being  affected  by  such  prejudice  or  local  influence,  and  that  no  party  to  the 
suit  will  be  prejudiced  by  a  separation  of  the  parties,  said  district  court 
may  direct  the  suit  to  be  remanded,  so  far  as  relates  to  such  other  de- 
fendants, to  the  state  court,  to  be  proceeded  with  therein.  At  any  time 
before  the  trial  of  any  suit  which  is  now  pending  in  any  district  court,  or 
may  hereafter  be  entered  therein,  and  which  has  been  removed  to  said  court 
from  a  state  court  on  the  affidavit  of  any  party  plaintiff  that  he  had 
reason  to  believe  and  did  believe  that,  from  prejudice  or  local  influence, 
he  was  unable  to  obtain  justice  in  said  state  court,  the  district  court  shall, 
on  application  of  the  other  party,  examine  into  the  truth  of  said  affidavit 
and  the  grounds  thereof,  and,  unless  it  shall  appear  to  the  satisfaction 
of  said  court  that  said  party  will  not  be  able  to  obtain  justice  in  said 
state  court,  it  shall  cause  the  same  to  be  remanded  thereto.  Whenever 
any  cause  shall  be  removed  from  any  state  court  into  any  district  court 
of  the  United  States,  and  the  district  court  shall  decide  that  the  cause  was 
improperly  removed,  and  order  the  same  to  be  remanded  to  the  state  court 
from  whence  it  came,  such  remand  shall  be  immediately  carried  into  execu- 
tion, and  no  appeal  or  writ  of  error  from  the  decision  of  the  district  court 
so  remanding  such  cause  shall  be  allowed.  Provided,  That  no  case  arising 
under  an  act  entitled  "An  Act  Relating  to  the  Liability  of  Common  Car- 
riers by  Railroad  to  Their  Employees  in  Certain  Cases,"  approved  April 
twenty-second,  nineteen  hundred  and  eight,  or  any  amendment  thereto, 
and  brought  in  any  state  court  of  competent  jurisdiction,  shall  be  removed 
to  any  court  of  the  United  States. 

"And  provided  further,  That  no  suit  brought  in  any  State  court  of 
competent  jurisdiction  against  a  railroad  company,  or  other  corporation, 
or  person,  engaged  in  and  carrying  on  the  business  of  a  common  carrier, 
to  recover  damages  for  delay,  loss  of,  or  injury  to  property  received  for 
transportation  by  such  common  carrier  under  section  twenty  of  the  Act 
to  regulate  commerce,  approved  February  fourth,  eighteen  hundred  and 


676  APPENDIX. 

eighty-seven,  as  amended  June  twenty-ninth,  nineteen  hundred  and  six, 
April  thirteenth,  nineteen  hundred  and  eight,  February  twenty-fifth,  nine- 
teen hundred  and  nine  and  June  eighteenth,  nineteen  hundred  and  ten 
shall  be  removed  to  any  court  of  the  United  States  where  the  matter  in 
controversy  does  not  exceed,  exclusive  of  interest  and  costs,  the  sum  or 
value  of  $3,000."  (36  Stats.  1094,  as  amended  by  38  Stats.  278,  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  16.) 

§  29.  Whenever  any  party  entitled  to  remove  any  suit  mentioned  in 
the  last  preceding  section,  except  suits  removable  on  the  grounds  of  preju- 
dice or  local  influence,  may  desire  to  remove  such  suit  from  a  state  court 
to  the  district  court  of  the  United  States,  he  may  make  and  file  a  petition, 
duly  verified,  in  such  suit  in  such  state  court  at  the  time,  or  at  any  time 
before  the  defendant  is  required  by  the  laws  of  the  state  or  the  rule 
of  the  state  court  in  which  such  suit  is  brought  to  answer  or  plead  to  the 
declaration  or  complaint  of  the  plaintiff,  for  the  removal  of  such  suit  into 
the  district  court  to  be  held  in  the  district  where  such  suit  is  pending, 
and  shall  make  and  file  therewith  a  bond,  with  good  and  sufficient  surety, 
for  his  or  their  entering  in  such  district  court,  within  thirty  days  from 
the  date  of  filing  said  petition,  a  certified  copy  of  the  record  in  such  suit, 
and  for  paying  all  costs  that  may  be  awarded  by  the  said  district  court  if 
said  district  court  shall  hold  that  such  suit  was  wrongfully  or  improperly 
removed  thereto,  and  also  for  their  appearing  and  entering  special  bail 
in  such  suit  if  special  bail  was  originally  requisite  therein.  It  shall  then 
be  the  duty  of  the  state  court  to  accept  said  petition  and  bond  and  proceed 
no  further  in  such  suit.  Written  notice  of  said  petition  and  bond  for 
removal  shall  be  given  the  adverse  party  or  parties  prior  to  filing  the  same. 
The  said  copy  being  entered  within  said  thirty  days  as  aforesaid  in  said 
district  court  of  the  United  States,  the  parties  so  removing  the  said  cause 
shall,  within  thirty  days  thereafter,  plead,  answer,  or  demur  to  the  declara- 
tion or  complaint  in  said  cause,  and  the  cause  shall  then  proceed  in  the 
same  manner  as  if  it  had  been  originally  commenced  in  the  said  district 
court. 

§  30.  If  in  any  action  commenced  in  a  state  court  the  title  of  land 
be  concerned,  and  the  parties  are  citizens  of  the  same  state  and  the  matter 
in  dispute  exceeds  the  sum  or  value  of  three  thousand  dollars,  exclusive 
of  interest  and  costs,  the  sum  or  value  being  made  to  appear,  one  or  more 
of  the  plaintiffs  or  defendants,  before  the  trial,  may  state  to  the  court, 
and  make  affidavit  if  the  court  require  it,  that  he  or  they  claim,  and  shall 
rely  upon,  a  right  or  title  to  the  land  under  a  grant  from  a  state,  and 
produce  the  original  grant,  or  an  exemplification  of  it,  except  where  the 


THE  JUDICIAL  CODB.  677 

loss  of  public  records  shall  put  it  out  of  his  or  their  power,  and  shall 
move  that  any  one  or  -more  of  the  adverse  party  inform  the  court  whether 
he  or  (hey  claim  a  right  or  title  to  the  land  under  a  grant  from  some 
other  state,  the  party  or  parties  so  required  shall  give  such  information, 
or  otherwise  not  be  allowed  to  plead  such  grant  or  give  it  in  evidence 
upon  the  trial.  If  he  or  they  inform  the  court  that  he  or  they  do  claim 
under  such  grant,  any  one  or  more  of  the  party  moving  for  such  informa- 
tion may  then,  on  petition  and  bond,  as  hereinbefore  mentioned  in  this 
chapter,  remove  the  cause  for  trial  to  the  district  court  of  the  United 
States  next  to  be  holden  in  such  district;  and  any  one  of  either  party 
removing  the  cause  shall  not  be  allowed  to  plead  or  give  evidence  of  any 
other  title  than  that  by  him  or  them  stated  as  aforesaid  as  the  ground  of 
his  or  their  claim. 

§  31.  When  any  civil  suit  or  criminal  prosecution  is  commenced  in 
any  state  court,  for  any  cause  whatsoever,  against  any  person  who  is  de- 
nied or  cannot  enforce  in  the  judicial  tribunals  of  the  state,  or  in  the  part 
of  the  state  where  such  suit  or  prosecution  is  pending,  any  right  secured 
to  him  by  any  law  providing  for  the  equal  civil  rights  of  citizens  of  the 
United  States,  or  of  all  persons  within  the  jurisdiction  of  the  United 
States,  or  against  any  officer,  civil  or  military,  or  other  person,  for  any 
arrest  or  imprisonment  or  other  trespasses  or  wrongs  made  or  committed 
by  virtue  of  or  under  color  of  authority  derived  from  any  law  providing 
for  equal  rights  as  aforesaid,  or  for  refusing  to  do  any  act  on  the  ground 
that  it  would  be  inconsistent  with  such  law,  such  suit  or  prosecution  may, 
upon  the  petition  of  such  defendant,  filed  in  said  state  court  at  any  time 
before  the  trial  or  final  hearing  of  the  cause,  stating  the  facts  and  verified 
by  oath,  be  removed  for  trial  into  the  next  district  court  to  be  held  in  the 
district  where  it  is  pending.  Upon  the  filing  of  such  petition  all  further 
proceedings  in  the  state  courts  shall  cease,  and  shall  not  be  resumed  except 
as  hereinafter  provided.  But  all  bail  and  other  security  given  in  such 
suit  or  prosecution  shall  continue  in  like  force  and  effect  as  if  the  same 
had  proceeded  to  final  judgment  and  execution  in  the  state  court.  It 
shall  be  the  duty  of  the  clerk  of  the  state  court  to  furnish  such  defendant, 
petitioning  for  a  removal,  copies  of  said  process  against  him,  and  of 
all  pleadings,  depositions,  testimony,  and  other  proceedings  in  the  case. 
If  such  copies  are  filed  by  said  petitioner  in  the  district  court  on  the 
first  day  of  its  session,  the  cause  shall  proceed  therein  in  the  same  manner 
as  if  it  had  been  brought  there  by  original  process;  and  if  the  said  clerk 
refuses  or  neglects  to  furnish  such  copies,  the  petitioner  may  thereupon 
docket  the  case  in  the  district  court,  and  the  said  court  shall  then  have 
jurisdiction  therein,  and  may,  upon  proof  of  such  refusal  or  neglect  of 


678  APPENDIX. 

said  clerk,  and  upon  reasonable  notice  to  the  plaintiff,  require  the  plaintiff 
to  file  a  declaration,  petition,  or  complaint  in  the  cause;  and,  in  case  of 
his  default,  may  order  a  nonsuit  and  dismiss  the  case  at  the  costs  of  the 
plaintiff,  and  such  dismissal  shall  be  a  bar  to  any  further  suit  touching 
the  matter  in  controversy.  But  if,  without  such  refusal  or  neglect  of  said 
clerk  to  furnish  such  copies  and  proof  thereof,  the  petitioner  for  removal 
fails  to  file  copies  in  the  district  court,  as  herein  provided,  a  certificate, 
under  the  seal  of'  the  district  court,  stating  such  failure,  shall  be  given, 
and  upon  the  production  'thereof  in  said  state  court  the  cause  shall  pro- 
ceed therein  as  if  no  petition  for  removal  had  been  filed. 

§  32.  When  all  the  acts  necessary  for  the  removal  of  any  suit  or  prose- 
cution, as  provided  in  the  preceding  section,  have  been  performed,  and 
the  defendant  petitioning  for  such  removal  is  in  actual  custody  on  process 
issued  by  said  state  court,  it  shall  be  the  duty  of  the  clerk  of  said  district 
court  to  issue  a  writ  of  habeas  corpus  cum  causa,  and  of  the  marshal,  by 
virtue  of  said  writ,  to  take  the  body  of  the  defendant  into  his  custody,  to 
be  dealt  with  in  said  district  court  according  to  law  and  the  orders  of 
said  court,  or,  in  vacation,  of  any  judge  thereof;  and  the  marshal  shall 
file  with  or  deliver  to  the  clerk  of  said  state  court  a  duplicate  copy  of  said 
writ. 

§  33.  That  when  any  civil  suit  or  criminal  prosecution  is  commenced 
in  any  court  of  a  State  against  any  officer  appointed  under  or  acting  by 
authority  of  any  revenue  law  of  the  United  States  now  or  hereafter  en- 
acted, or  against  any  person  acting  under  or  by  authority  of  any  such 
officer,  on  account  of  any  act  done  under  color  of  his  office  or  of  any  such 
law,  or  on  account  of  any  right,  title,  or  authority  claimed  by  such  officer 
or  other  person  under  any  such  law,  or  is  commenced  against  any  person 
holding  property  or  estate  by  title  derived  from  any  such  officer  and 
affects  the  validity  of  any  such  revenue  law,  or  against  any  officer  of  the 
courts  of  the  United  States  for  or  on  account  of  any  act  done  under  color 
of  his  office  or  in  the  performance  of  his  duties  as  such  officer,  or  when 
any  civil  suit  or  criminal  prosecution  is  commenced  against  any  person 
for  or  on  account  of  anything  done  by  him  while  an  officer  of  either 
House  of  Congress  in  the  discharge  of  his  official  duty  in^executing  any 
order  of  such  House,  the  said  suit  or  prosecution  may  at  any  time  before 
the  trial  or  final  hearing  thereof  be  removed  for  trial  into  the  district 
court  next  to  be  holden  in  the  district  where  the  same  is  pending  upon 
the  petition  of  such  defendant  to  said  district  court  and  in  the  following 
manner:  Said  petitions  shall  set  forth  the  nature  of  the  suit  or  prosecu- 
tion and  be  verified  by  affidavit  and,  together  with  a  certificate  signed 


THE  JUDICIAL  CODE.  679 

by  an  attorney  or  counselor  at  law  of  some  court  of  record  of  the  State 
where  such  suit  or  prosecution  is  commenced  or  of  the  United  States  stat- 
ing that,  as  counsel  for  the  petitioner,  he  has  examined  the  proceedings 
against  him  and  carefully  inquired  into  all  the  matters  set  forth  in  the 
petition,  and  that  he  believes  them  to  be  true,  shall  be  presented  to  the 
said  district  court,  if  in  session,  or  if  it  be  not,  to  the  clerk  thereof  at 
his  office,  and  shall  be  filed  in  said  office.  The  cause  shall  thereupon  be 
entered  on  the  docket  of  the  district  court  and  shall  proceed  as  a  cause 
originally  commenced  in  that  court;  but  all  bail  and  other  security  given 
upon  such  suit  or  prosecution  shall  continue  in  like  force  and  effect  as  if 
the  same  had  proceeded  to  final  judgment  and  execution  in  the  State 
court.  When  the  suit  is  commenced  in  the  State  court  by  summons, 
subpoena,  petition,  or  any  other  process  except  capias,  the  clerk  of  the 
district  court  shall  issue  a  writ  of  certiorari  to  the  State  court  requiring 
it  to  send  to  the  district  court  the  record  and  the  proceedings  in  the  cause. 
When  it  is  commenced  by  capias  or  by  any  other  similar  form  of  pro- 
ceeding by  which  a  personal  arrest  is  ordered,  he  shall  issue  a  writ  of 
habeas  corpus  cum  causa,  a  duplicate  of  which  shall  be  delivered  to  the 
clerk  of  the  State  court  or  left  at  his  office  by  the  marshal  of  the  district 
or  his  deputy  or  by  some  other  person  duly  authorized  thereto;  and  there- 
upon it  shall  be  the  duty  of  the  State  court  to  stay  all  further  proceedings 
in  the  cause,  and  the  suit  or  prosecution,  upon  delivery  of  such  process, 
or  leaving  the  same  as  aforesaid,  shall  be  held  to  be  removed  to  the  dis- 
trict court,  and  any  further  proceedings,  trial,  or  judgment  therein  in 
the  State  court  shall  be  void.  If  the  defendant  in  the  suit  or  prosecu- 
tion be  in  actual  custody  on  'mesne  process  therein,  it  shall  be  the  duty 
of  the  marshal,  by  virtue  of  the  writ  of  habeas  corpus  cum  causa,  to  take 
the  body  of  the  defendant  into  his  custody,  to  be  dealt  with  in  the  cause 
according  to  law  and  the  order  of  the  district  court,  or,  in  vacation,  of 
any  judge  thereof;  and  if,  upon  the  removal  of  such  suit  or  prosecution, 
it  is  made  to  appear  to  the  district  court  that  no  copy  of  the  record  and 
proceedings  therein  in  the  State  court  can  be  obtained,  the  district  court 
may  allow  and  require  the  plaintiff  to  proceed  de  novo  and  to  file  a 
declaration  of  his  cause  of  action,  and  the  parties  may  thereupon  proceed 
as  in  actions  originally  brought  in  said  district  court.  On  failure  of  the 
plaintiff  so  to  proceed,  judgment  of  non  prosequitur  may  be  rendered 
against  him,  with  costs  'for  the  defendant. 

§  34.  Whenever  a  personal  action  has  been  or  shall  be  brought  in 
any  state  court  by  an  alien  against  any  citizen  of  a  state  who  is,  or  at  the 
time  the  alleged  action  accrued  was,  a  civil  officer  of  the  United  States, 
being  a  nonresident  of  that  state  wherein  jurisdiction  is  obtained  by  the 


680  APPENDIX. 

state  court,  by  personal  service  of  process,  such  action  may  be  removed 
into  the  district  court  of  the  United  States  in  and  for  the  disti'ict  in  which 
the  defendant  shall  have  been  served  with  the  process,  in  the  same  manner 
as  now  provided  for  the  removal  of  an  action  brought  in  a  state  court  by 
the  provisions  of  the  preceding  section. 

§  35.  In  any  case  where  a  party  is  entitled  to  copies  of  the  records 
and  proceedings  in  any  suit  or  prosecution  in  a  state  court,  to  be  used  in 
any  court  of  the  United  States,  if  the  clerk  of  said  state  court,  upon 
demand,  and  the  payment  or  tender  of  the  legal  fees,  refuses  or  neglects 
to  deliver  to  him  certified  copies  of  such  records  and  proceedings,  the  court 
of  the  United  States  in  which  such  records  and  proceedings  are  needed 
may,  on  proof  by  affidavit  that  the  clerk  of  said  state  court  has  refused 
or  neglected  to  deliver  copies  thereof,  on  demand  as  aforesaid,  direct  such 
record  to  be  supplied  by  affidavit  or  otherwise,  as  the  circumstances  of 
the  case  may  require  and  allow;  and  thereupon  such  proceeding,  trial, 
and  judgment  may  be  had  in  the  said  court  of  the  United  States,  and  all 
such  process  awarded,  as  if  certified  copies  of  such  records  and  proceed- 
ings had  been  regularly  before  the  said  court. 

§  36.  When  any  suit  shall  ( be  removed  from  a  state  court  to  a  dis- 
trict court  of  the  United  States,  any  attachment  or  sequestration  of  the 
goods  or  estate  of  the  defendant  had  in  such  suit  in  the  state  court  shall 
hold  the  goods  or  estate  so  attached  or  sequestered  to  answer  the  final 
judgment  or  decree  in  the  same  manner  as  by  law  they  would  have  been 
held  to  answer  final  judgment  or  decree  had  it  been  rendered  by  the  court 
in  which  said  suit  was  commenced.  All  bonds,  undertakings,  or  security 
given  by  either  party  in  such  suit  prior  to  its  removal  shall  remain  valid 
and  effectual  notwithstanding  said  removal;  and  all  injunctions^  orders, 
and  other  proceedings  had  in  such  suit  prior  to  its  removal  shall  remain 
in  full  force  and  effect  until  dissolved  or  modified  by  the  court  to  which 
such  suit  shall  be  removed. 

§  37.  If  in  any  suit  commenced  in  a  district  court,  or  removed  from 
a  state  court  to  a  district  court  of  the  United  States,  it  shall  appear  to 
the  satisfaction  of  the  said  district  court,  at  any  time  after  such  suit  has 
been  brought  or  removed  thereto,  that  such  suit  does  not  really  and  sub- 
stantially invoke  a  dispute  or  controversy  properly  within  the  jurisdiction 
of  said  district  court,  or  that  the  parties  to  said  suit  have  been  improp- 
erly or  collusively  made  or  joined,  either  as  plaintiffs  or  defendants,  for 
the  purpose  of  creating  a  case  cognizable  or  removable  under  this  chapter, 
the  said  district  court  shall  proceed  no  further  therein,  but  shall  dismiss 


THE  JUDICIAL  CODE.  681 

the  suit  or  remand  it  to  the  court  from  which  it  was  removed,  as  justice 
may  require,  and  shall  make  such  order  as  to  costs  as  shall  be  just. 

§  38.  The  district  court  of  the  United  States  shall,  in  all  suits  removed 
under  the  provisions  of  this  chapter,  proceed  therein  as  if  the  suit  had 
been  originally  commenced  in  said  district  court,  and  the  same  proceed- 
ings had  been  taken  in  such  suit  in  said  disti'ict  court  as  shall  have  been 
had  therein  in  said  state  court  prior  to  its  removal. 

§  39.  In  all  causes  removable  under  this  chapter,  if  the  clerk  of  the 
state  court  in  which  any  such  cause  shall  be  pending  shall  refuse  to  any 
one  or  more  of  the  parties  or  persons  applying  to  remove  the  same,  a 
copy  of  the  record  therein,  after  tender  of  legal  fees  for  such  copy,  said 
clerk  so  offending  shall,  on  conviction  thereof  in  the  district  court  of  the 
United  States  to  which  said  action  or  proceeding  was  removed,  be  fined 
not  more  than  one  thousand  dollars,  or  imprisoned  not  more  than  one 
year,  or  both.  The  district  court  to  which  any  cause  shall  be  removable 
under  this  chapter  shall  have  power  to  issue  a  writ  of  certiorari  to  said 
state  court  commanding  such  state  court  to  make  return  of  the  record 
in  any  such  cause  removed  as  aforesaid,  or  in  which  any  one  or  more 
of  the  plaintiffs  or  defendants  have  complied  with  the  provisions  of  this 
chapter  for  the  removal  of  the  same,  and  enforce  said  writ  according  to 
law.  If  it  shall  be  impossible  for  the  parties  or  persons  removing  any 
cause  under  this  chapter,  or  complying  with  the  provisions  for  the  removal 
thereof,  to  obtain  such  copy,  for  the  reason  that  the  clerk  of  said  state 
court  refuses  to  furnish  a  copy,  on  payment  of  legal  fees,  or  for  any 
other  reason,  the  district  court  shall  make  an  order  requiring  the  prose- 
cutor in  any  such  action  or  proceeding  to  enforce  forfeiture  or  recover 
penalty,  as  aforesaid,  to  file  a  copy  of  the  paper  or  proceeding  by  which 
the  same  was  commenced,  within  such  time  as  the  court  may  determine; 
and  in  default  thereof  the  court  shall  dismiss  the  said  action  or  proceed- 
ing; but  if  said  order  shall  be  complied  with,  then  said  district  court  shall 
require  the  other  party  to  plead,  and  said  action  or  proceeding  shall  pro- 
ceed to  final  judgment.  The  said  district  court  may  make  an  order 
requiring  the  parties  thereto  to  plead  de  novo;  and  the  bond  given,  condj- 
tioned  as  aforesaid,  shall  be  discharged  so  far  as  it  requires  copy  of  the 
record  to  be  filed  as  aforesaid. 


682 


APPENDIX. 


CHAPTER  FOUR. 


DISTRICT   COURTS — MISCELLANEOUS    PROVISIONS. 


SEC. 

40.  Capital  cases;  where  triable. 

41.  Offenses   on   the   high   seas,   etc., 

where  triable. 

42.  Offenses    begun    in    one    district 

and   completed   in   another. 

43.  Suits    for    penalties    and    forfeit- 

ures, where  brought. 

44.  Suits    for    internal-revenue    taxes, 

where  brought. 

45.  Seizures,    where    cognizable. 

46.  Capture   of  insurrectionary  prop- 

erty, where  cognizable. 

47.  Certain   seizures   cognizable  in  any 

district    into    which    the    prop- 
erty is  taken. 
4&.  Jurisdiction  in  patent  cases. 

49.  Proceedings   to    enjoin    Comptrol- 

ler of  the  Currency. 

50.  When  a  part   of  several  defend- 

ants cannot  be  served. 

51.  Civil  suits;  where  to  be  brought. 

52.  Suits   in   states    containing    more 

than  one  district. 

53.  Districts     containing    more    than 

one  division;  where  suit  to  be 
brought;  transfer  of  criminal 
cases. 

54.  Suits  of  a  local  nature,  where  to 

be  brought. 

55.  When   property    lies    in    different 

districts  in  same  state. 

56.  When    property   lies   in    different 

states  in  same  circuit;  juris- 
diction of  receiver. 


SEC. 

57.  Absent  defendants  in  suits  to  en- 

force liens,  remove  clouds  on 
titles,  etc. 

58.  Civil   causes   may   be   transferred 

to  another  division  of  district 
by  agreement. 

59.  Upon  creation  of  new  district  or 

division,  where  prosecution  to 
be  instituted  or  action  brought. 

60.  Creation     of     new     district,     or 

transfer  of  territory  not  to 
divest  lien;  how  lien  to  be  en- 
forced. 

61.  Commissioners        to        administer 

oaths  to  appraisers. 

62.  Transfer    of    records    to    district 

court  when  a  territory  becomes 
a  state. 

63.  District  judge  shall  demand  and 

compel  delivery  of  records  of 
territorial  court. 

64.  Jurisdiction   of   district  courts  in 

cases  transferred  from  terri- 
torial courts. 

65.  Receivers  to  manage  property  ac- 

cording to  state  laws. 

66.  Suits  against  receiver. 

67.  Certain    persons    not    to    be    ap- 

pointed or  employed  as  offi- 
cers of  courts. 

68.  Certain  persons  not  to  be  masters 

or  receivers. 


§  40.  The  trial  of  offenses  punishable  with  death  shall  be  had  in  the 
county  where  the  offense  was  committed,  where  that  can  be  done  without 
great  inconvenience. 

§  41.  The  trial  of  all  offenses  committed  upon  the  high  seas,  or  else- 
where out  of  the  jurisdiction  of  any  particular  state  or  district,  shall 
be  in  the  district  where  the  offender  is  found,  or  into  which  he  is  first 
brought. 

§  42.  When  any  offense  against  the  United  States  is  begun  in  one 
judicial  district  and  completed  in  another,  it  shall  be  deemed  to  have  been 
committed  in  either,  and  may  be  dealt  with,  inquired  of,  tried,  deter- 


THE  JUDICIAL  CODE.  683 

mined,  and  punished  in  either  district,  in  the  same  manner  as  if  it  had 
been  actually  and  wholly  committed  therein. 

§  43.  All  pecuniary  penalties  and  forfeitures  may  be  sued  for  and 
recovered  either  in  the  district  where  they  accrue  or  in  the  district  where 
the  offender  is  found. 

§  44.  Taxes  accruing  under  any  law  providing  internal  revenue  may 
be  sued  for  and  recovered  either  in  the  district  where  the  liability  for 

such  tax  occurs  or  in  the  district  where  the  delinquent  resides. 

* 

§  45.  Proceedings  on  seizures  made  on  the  high  seas,  for  forfeiture 
under  any  law  of  the  United  States,  may  be  prosecuted  in  any  district  into 
which  the  property  so  seized  is  brought  and  proceedings  instituted.  Pro- 
ceedings on  such  seizures  made  within  any  district  shall  be  prosecuted  in 
the  district  where  the  seizure  is  made,  except  in  cases  where  it  is  otherwise 
"provided. 

§  46.  Proceedings  for  the  condemnation  of  any  property  captured, 
whether  on  the  high  seas  or  elsewhere  out  of  the  limits  of  any  judicial 
district,  or  within  any  district,  on  account  of  its  being  purchased  or  ac- 
quired, sold  or  given,  with  intent  to  use  or  employ  the  same,  or  to  suffer 
it  to  be  used  or  employed,  in  aiding,  abetting,  or  promoting  any  insur- 
rection against  the  government  of  the  United  States,  or  knowingly  so  used 
or  employed  by  the  owner  thereof,  or  with  his  consent,  may  be  prosecuted 
in  any  district  where  the  same  may  be  seized,  or  into  which  it  may  be 
taken  and  proceedings  first  instituted. 

§  47.  Proceedings  on  seizures  for  forfeiture  of  any  vessel  or  cargo 
entering  any  port  of  entry  which  has  been  closed  by  the  President  in 
pursuance  of  law,  or  of  goods  and  chattels  coming  from  a  state  or  section 
declared  by  proclamation  of  the  President  to  be  in  insurrection  into  other 
parts  of  the  United  States,  or  of  any  vessel  or  vehicle  conveying  such 
property,  or  conveying  persons  to  or  from  such  state  or  section,  or  of  any 
vessel  belonging,  in  whole  or  in  part,  to  any  inhabitant  of  such  state  or 
section,  may  be  prosecuted  in  any  district  into  which  the  property  so 
seized  may  be  taken  and  proceedings  instituted;  and  the  district  court 
thereof  shall  have  as  full  jurisdiction  over  such  proceedings  as  if  the 
seizure  was  made  in  that  district. 

§  48.  In  suits  brought  for  the  infringement  of  letters  patent  the  dis- 
trict courts  of  the  United  States  shall  have  jurisdiction,  in  law  or  in 
equity,  in  the  district  of  which  the  defendant  is  an  inhabitant,  or  in  any 
district  in  which  the  defendant,  whether  a  person,  partnership,  or  cor- 


684  APPENDIX. 

poration,  shall  have  committed  acts  of  infringement  and  have  a  regular 
and  established  place  of  business.  If  such  suit  is  brought  in  a  district 
of  which  the  defendant  is  not  an  inhabitant,  but  in  which  such  defendant 
has  a  regular  and  established  place  of  business,  sendee  of  process,  sum- 
mons, or  subpoana  upon  the  defendant  may  be  made  by  service  upon 
the  agent  or  agents  engaged  in  conducting  such  business  in  the  district 
in  which  suit  is  brought. 

§  49.  All  proceedings  by  any  national  banking  association  to  enjoin 
the  Comptroller  of  the  Currency,  under  the  provisions  of  any  lawrelating 
to  national  banking  associations,  shall  be  had  in  the  district  where  such 
association  is  located. 

§  50.  Where  there  are  several  defendants  in  any  suit  at  law  or  in 
equity,  and  one  or  more  of  them  are  neither  'inhabitants  of  nor  found 
within  the  district  in  which  the  suit  is  brought,  and  do  not  voluntarily 
appear,  the  court  may  entertain  jurisdiction,  and  proceed  to  the  trial  and 
adjudication  of  the  suit  between  the  parties  who  are  properly  before  it; 
but  the  judgment  or  decree  rendered  therein  shall  not  conclude  or  preju- 
dice other  parties  not  regularly  served  with  process  nor  voluntarily  appear- 
ing to  answer;  and  nonjoinder  of  parties  who  are  not  inhabitants  of  nor 
found  within  the  district,  as  aforesaid,  shall  not  constitute  matter  of 
abatement  or  objection  to  the  suit. 

§  51.  Except  as  provided  in  the  five  succeeding  sections,  no  person 
shall  be  arrested  in  one  district  for  trial  in  another,  in  any  civil  action 
before  a  district  court;  and,  except  as  provided  in  the  six  succeeding  sec- 
tions, no  civil  suit  shall  be  brought  in  any  district  court  against  any 
person  by  any  original  process  or  proceeding  in  any  other  district  than 
that  whereof  he  is  an  inhabitant;  but  where  the  jurisdiction  is  founded 
only  on  the  fact  that  the  action  is  between  citizens  of  different  states, 
suit  shall  be  brought  only  in  the  district  of  the  residence  of  either  the 
plaintiff  or  the  defendant. 

§  52.  When  a  state  contains  more  than  one  district,  every  suit  not  of 
a  local  nature,  in  the  district  court  thereof,  against  a  single  defendant, 
inhabitant  of  such  state,  must  be  brought  in  the  district  where  he  resides; 
but  if  there  are  two  or  more  defendants,  residing  in  different  districts 
of  the  state,  it  may  be  brought  in  either  district,  and  a  duplicate  writ 
may  be  issued  against  the  defendants,  directed  to  the  marshal  of  any 
other  district  in  which  any  defendant  resides.  The  clerk  issuing  the 
duplicate  writ  shall  indorse  thereon  that  it  is  a  true  copy  of  a  writ  sued 
out  of  the  court  of  the  proper  district;  and  such  original  and  duplicate 


THE  JUDICIAL  CODE.  685 

writs,  when  executed  and  returned  into  the  office  from  which  they  issue, 
shall  constitute  and  be  proceeded  on  as  one  suit;  and  upon  any  judgment 
or  decree  rendered  therein,  execution  may  be  issued,  directed  to  the  mar- 
shal of  any  district  in  the  same  state. 

§  53.  When  a  district  contains  more  than  one  division,  every  suit  not 
of  a  local  nature  against  a  single  defendant  must  be  brought  in  the  division 
where  he  resides;  but  if  there  are  two  or  more  defendants  residing  in 
different  divisions  of  the  district  it  may  be  brought  in  either  division. 
All  mesne  and  final  process  subject  to  the  provisions  of  this  section  may 
be  served  and  executed  in  any  or  all  of  the  divisions  of  the  district,  or  if 
the  state  contains  more  than  one  district,  then  in  any  of  such  districts, 
as  provided  in  the  preceding  section.  All  prosecutions  for  crimes  or 
offenses  shall  be  had  within  the  division  of  such  districts  where  the  same 
were  committed,  unless  the  court,  or  the  judge  thereof,  upon  the  applica- 
tion of  the  defendant,  shall  order  the  cause  to  be  transferred  for  prose- 
cution to  another  division  of  the  district.  When  a  transfer  is  ordered 
by  the  court  or  judge,  all  the  papers  in  the  case,  or  certified  copies  thereof, 
shall  be  transmitted  by  the  clerk,  under  the  seal  of  the  court,  to  the  division 
to  which  the  cause  is  so  ordered  transferred ;  and  thereupon  the  cause  shall 
be  proceeded  with  in  said  division  in  the  same  manner  as  if  the  offense 
had  been  committed  therein.  In  all  cases  of  the  removal  of  suits  from 
the  courts  of  a  state  to  the  district  court  of  the  United  States  such  removal 
shall  be  to  the  United  States  district  court  in  the  division  in  which  the 
county  is  situated  from  which  the  removal  is  made;  and  the  time  within 
which  the  removal  shall  be  perfected,  in  so  far  as  it  refers  to  or  is  regu- 
lated by  the  terms  of  the  United  States  courts,  shall  be  deemed  to  refer 
to  the  terms  of  the  United  States  district  court  in  such  division. 

§  54.  In  suits  of  a  local  nature,  where  the  defendant  resides  in  a  dif- 
ferent district,  in  the  same  state,  from  that  in  which  the  suit  is  brought, 
the  plaintiff  may  have  original  and  final  process  against  him,  directed  to 
the  marshal  of  the  district  in  which  he  resides. 

§  55.  Any  suit  of  a  local  nature,  at  law  or  in  equity,  where  the  land 
or  other  subject-matter  of  a  fixed  character  lies  partly  in  one  district 
and  partly  in  another,  within  the  same  state,  may  be  brought  in  the  dis- 
trict court  of  either  district;  and  the  court  in  which  it  is  brought  shall 
have  jurisdiction  to  hear  and  decide  it,  and  to  cause  mesne  or  final  process 
to  be  issued  and  executed,  as  fully  as  if  the  said  subject-matter  were 
wholly  within  the  district  for  which  such  court  is  constituted. 


686  APPENDIX. 

§  56.  Where  in  any  suit  in  which  a  receiver  shall  be  appointed  the  land 
or  other  property  of  a  fixed  character,  the  subject  of  the  suit,  lies  within 
different  states  in  the  same  judicial  circuit,  the  receiver  so  appointed 
shall,  upon  giving  bond  as  required  by  the  court,  immediately  be  vested 
with  full  jurisdiction  and  control  over  all  the  property,  the  subject  of 
the  suit,  lying  or  being  within  such  circuit;  subject,  however,  to  the  dis- 
approval of  such  order,  within  thirty  days  thereafter,  by  the  circuit  court 
of  appeals  for  such  circuit,  or  by  a  circuit  judge  thereof,  after  reasonable 
notice  to  adverse  parties  and  an  opportunity  to  be  heard  upon  the  motion 
for  such  disapproval;  and  subject,  also,  to  the  filing  and  entering  in  the 
district  court  for  each  district  of  the  circuit  in  which  any  portion  of  the 
property  rn^ay  lie  or  be,  within  ten  days  thereafter,  of  a  duly  certified 
copy  of  the  bill  and  of  the  order  of  appointment.  The  disapproval  of 
such  appointment  within  such  thirty  days,  or  the  failure  to  file  such 
certified  copy  of  the  bill  and  order  of  appointment  within  ten  days,  as 
herein  required,  shall  divest  such  receiver  of  jurisdiction  over  all  such 
property  except  that  portion  thereof  lying  or  being  within  the  state  in 
which  the  suit  is  brought.  In  any  case  coming  within  the  provisions  of 
this  section,  in  which  a  receiver  shall  be  appointed,  process  may  issue 
and  be  executed  within  any  district  of  the  circuit  in  the  same  manner 
and  to  the  same  extent  as  if  the  property  were  wholly  within  the  same 
district ;  but  orders*  affecting  such  property  shall  be  entered  of  record  in 
each  district  in  which  the  property  affected  may  lie  or  'be. 

§  57.  When  in  any  suit  commenced  in  any  district  court  of  the  United 
States  to  enforce  any  legal  or  equitable  lien  upon  or  claim  to,  or  to 
remove  any  encumbrance  or  lien  or  cloud  upon  the  title  to,  real  or  per- 
sonal property  within  the  district  where  such  suit  is  brought,  one  or  more 
of  the  defendants  therein  shall  not  be  an  inhabitant  of  or  found  within 
the  said  district,  or  shall  not  voluntarily  appear  thereto,  it  shall  be  lawful 
for  the  court  to  make  an  order  directing  such  absent  defendant  or  de- 
fendants to  appear,  plead,  answer,  or  demur  by  a  day  certain  to  be 
designated,  which  order  shall  be  served  on  such  absent  defendant  or  de- 
fendants, if  practicable,  wherever  found,  and  also  upon  the  person  or 
persons  in  possession  or  charge  of  said  property,  if  any  there  be;  or 
where  such  personal  service  upon  such  absent  defendant  or  defendants 
is  not  practicable,  such  order  shall  be  published  in  such  manner  as  the 
court  may  direct,  not  less  than  once  a  week  for  six  consecutive  weeks. 
In  case  such  absent  defendant  shall  not  appear,  plead,  answer,  or  demur 
within  the  time  so  limited,  or  within  some  further  time,  to  be  allowed 
by  the  court,  in  its  discretion,  and  upon  proof  of  the  service  or  publica- 


tfiE    JUDICIAL    CODE.  68? 

tion  of  said  order  and  of  the  performance  of  the  directions  contained  in 
the  same,  it  shall  be  lawful  for  the  court  to  entertain  jurisdiction,  and 
proceed  to  the  hearing  and  adjudication  of  such  suit  in  the  same  manner 
as  if  such  absent  defendant  had  been  served  with  process  withjn  the 
said  district;  but  said  adjudication  shall,  as  regards  said  absent  defendant 
or  defendants  without  appearance,  affect  only  the  property  which  shall 
have  been  the  subject  of  the  suit  and  under  the  jurisdiction  of  the  court 
therein,  within  such  district;  and  when  a  part  of  the  said  real  or  per- 
sonal property  against  which  such  proceedings  shall  be  taken  shall  be 
within  another  district,  but  within  the  same  state,  such  suit  may  be  brought 
in  either  district  in  said  state:  Provided,  however,  That  any  defendant 
or  defendants  not  actually  personally  notified  as  above  provided  may, 
at  any  time  within  one  year  after  final  judgment  in  any  suit  mentioned 
in  this  section,  enter  his  appearance  in  said  suit  in  said  district  court, 
and  thereupon  the  said  court  shall  make  an  order  setting  aside  the  judg- 
ment therein  and  permitting  said  defendant  or  defendants  to  plead  therein 
on  payment  by  him  or  them  of  such  costs  as  the  court  shall  deem  just; 
and  thereupon  said  suit  shall  be  proceeded  with  to  final  judgment  accord- 
ing to  law. 

§  58.  Any  civil  cause,  at  law  or  in  equity,  may,  on  written  stipulation 
of  the  parties  or  of  their  attorneys  of  record  signed  and  filed  with  the 
papers  jn  the  case,  in  vacation  or  in  term,  and  on  the  written  order  of 
the  judge  signed  and  filed  in  the  case  in  vacation  or  on  the  order  of  the 
court  duly  entered  of  record  in  term,  be  transferred  to  the  court  of  any 
other  division  of  the  same  district,  without  regard  to  the  residence  of  the 
defendants,  for  trial.  When  a  cause  shall  be  ordered  to  be  transferred 
to  a  court  in  any  other  division,  it  shall  be  the  duty  of  the  clerk  of  the 
court  from  which  the  transfer  is  made  to  carefully  transmit  to  the  clerk 
of  the  court  to  which  the  transfer  is  made  the  entire  file  of  papers  in  the 
cause  and  all  documents  and  deposits  in  his  court  pertaining  thereto, 
together  with  a  certified  transcript  of  the  records  of  all  orders,  interlocu- 
tory decrees,  or  other  entries  in  the  cause;  and  he  shall  certify,  under 
the  seal  of  the  court,  that  the  papers  sent  are  all  which  are  on  file  in 
said  court  belonging  to  the  cause ;  for  the  performance  of  which  duties 
said  clerk  so  transmitting  and  certifying  shall  receive  the  same  fees  as 
are  now  allowed  by  law  for  similar  services,  to  be  taxed  in  the  bill  of 
costs,  and  regularly  collected  with  the  other  costs  in  the  cause;  and  such 
transcript,  when  so  certified  and  received,  shall  henceforth  constitute  a 
part  of  the  record  of  the  cause  in  the  court  to  which  the  transfer  shall 
be  made.  The  clerk  receiving  such  transcript  and  original  papers  shall 


688  APPENDIX. 

file  the  same  and  the  case  shall  then  proceed  to  final  disposition  as  other 
cases  of  a  like  nature. 

§  59.  Whenever  any  new  district  or  division  has  been  or  shall  be  estab- 
lished', or  any  county  or  territory  has  been  or  shall  be  transferred  from 
one  district  or  division  to  another  district  or  division,  prosecutions  for 
crimes  and  offenses  committed  within  such  district,  division,  county,  or 
territory  prior  to  such  transfer,  shall  be  commenced  and  proceeded  with 
the  same  as  if  such  new  district  or  division  had  not  been  created,  or 
such  county  or  territory  had  not  been  transferred,  unless  the  court,  upon 
the  application  of  the  defendant,  shall  order  the  cause  to  be  removed  to 
the  new  district  or  division  for  trial.  Civil  actions  pending  at  the  time 
of  the  creation  of  any  such  district  or  division,  or  the  transfer  of  any 
such  county  or  territory,  and  arising  within  the  district  or  division  so 
created  or  the  county  or  territory  so  transferred,  shall  be  tried  in  the 
district  or  division  as  it  existed  at  the  time  of  the  institution  of  the  action, 
or  in  the  district  or  division  so  created,  or  to  which  the  county  or  terri- 
tory is  or  shall  be  so  transferred,  as  may  be  agreed  upon  by  the  parties, 
or  as  the  court  shall  direct.  The  transfer  of  such  prosecutions  and  actions 
shall  be  made  in  the  manner  provided  in  the  section  last  preceding. 

§  60.  The  creation  of  a  new  district  or  division,  or  the  transfer  of  any 
county  or  territory  from  one  district  or  division^to  another  district  or 
division,  shall  not  affect  or  divest  any  lien  theretofore  acquired  in  the 
circuit  or  district  court  by  virtue  of  a  decree,  judgment,  execution,  attach- 
ment, seizure,  or  otherwise,  upon  property  situated  or  being  within  the 
district  or  division  so  created,  or  the  county  or  territory  so  transferred. 
To  enforce  any  such  lien,  the  clerk  of  the  court  in  which  the  same  is 
acquired,  upon  the  request  and  at  the  cost  of  the  party  desiring  the  same, 
shall  make  a  true  and  certified  copy  of  the  record  thereof,  which,  when 
so  made  and  certified,  and  filed  in  the  proper  court  of  the  district  or 
division  in  which  such  property  is  situated  or  shall  be,  after  such  transfer, 
shall  constitute  the  record  of  such  lien  in  such  court,  and  shall  be  evidence 
in  all  courts  and  places  equally  with  the  original  thereof;  and  thereafter 
like  proceedings  sljall  be  had  thereon,  and  with  the  same  effect,  as  though 
the  cause  or  proceeding  had  been  originally  instituted  in  such  court.  The 
provisions  of  this  section  shall  apply  not  only  in  all  cases  where  a  district 
or  division  is  created,  or  a  county  or  any  territory  is  transferred  by  this 
or  any  future  act,  but  also  in  all  cases  where  a  district  or  division  has 
been  created,  or  a  county  or  any  territory  has  been  transferred  by  any  law 
heretofore  enacted. 


THE    JUDICIAL    CODE.  689 

§  61.  Any  district  judge  may  appoint  commissioners,  before  whom  ap- 
praisers of  vessels  or  goods  and  merchandise  seized  for  breaches  of  any 
law  of  the  United  States,  may  be  sworn;  and  such  oaths,  so  taken,  shall 
be  as  effectual  as  if  taken  before  the  judge  in  open  court. 

§62  (Re-enacting  §  567,  Rev.  Stats).  When  any  territory  is  admitted 
as  a  state,  and  a  district  court  is  established  therein,  all  the  records  of 
the  proceedings  in  the  several  cases  pending  in  the  highest  court  of  said 
territory  at  the  time  of  such  admission,  and  all  records  of  the  proceedings 
in  the  several  cases  in  which  judgments  or  decrees  had  been  rendered 
in  said  territorial  court  before  that  time,  and  from  which  writs  of  error 
could  have  been  sued  out  or  appeals  could  have  been  taken,  or  from 
which  writs  of  error  had  been  sued  out  or  appeals  had  been  taken  and 
prosecuted  to  the  Supreme  Court  or  to  the  circuit  court  of  appeals,  shall 
be  transferred  to  and  deposited  in  the  district  court  for  the  said  state. 
(36  Stats.  1104;  Benner  v.  Porter,  50  U.  S.  235,  13  L.  Ed.  119,  9  How. 
(U.  S.)  235.) 

§63  (Re-enacting  §568,  Rev.  Stats.).  It  shall  be  the  duty  of  the 
district  judge,  in  the  case  provided  in  the  preceding  section,  to  demand 
of  the  clerk,  or  other  person  having  possession  or  custody  of  the  records 
therein  mentioned,  the  delivery  thereof,  to  be  deposited  in  said  district 
court;  and  in  case  of  the  refusal  of  such  clerk  or  person  to  comply  with 
such  demand,  the  said  district  judge  shall  compel  the  delivery  of  such 
records  by  attachment  or  otherwise,  according  to  law/  (36  Stats.  1104; 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  540;  1  U.  S.  Comp.  Stats.  1916,  §  1045, 
p.  1183.) 

§  64.  When  any  territory  is  admitted  as  a  state,  and  a  district  court 
is  established  therein,  the  said  district  court  shall  take  cognizance  of  all 
cases  which  were  pending  and  undetermined  in  the  trial  courts  of  such 
territory,  from  the  judgments  or  decrees  to  be  rendered  in  which  writs  of 
error  could  have  been  sued  out  or  appeals  taken  to  the  Supreme  Court  or 
to  the  circuit  court  of  appeals,  and  shall  proceed  to  hear  and  determine 
the  same. 

§  65.  Whenever  in  any  cause  pending  in  any  court  of  the  United 
States  there  shall  be  a  receiver  or  manager  in  possession  of  any  property, 
such  receiver  or  manager  shall  manage  and  operate  such  property  accord- 
ing to  the  requirements  of  the  valid  laws  of  the  state  in  which  such  prop- 
erty shall  be  situated,  in  the  same  manner  that  the  owner  or  possessor 
thereof  would  be  bound  to  do  if  in  possession  thereof.  Any  receiver  or 

Manual — 4« 


690  APPENDIX. 

manager  who  shall  willfully  violate  any  provision  of  this  section  shall  be 
fined  not  more  than  three  thousand  dollars,  or  imprisoned  not  more  than 
one  year,  or  both. 

§  66.  (Formerly  §  3,  Act  Mch.  3, 1887,  c.  373,  as  Amended  Act  Aug.  13, 
1888,  c.  866.)  Every  receiver  or  manager  of  any  property  appointed  by 
any  court  of  the  United  States  may  be  sued  in  respect  of  any  act  or  transac- 
tion of  his  in  carrying  on  the  business  connected  with  such  property,  with- 
out the  previous  leave  of  the  court  in  which  such  receiver  or  manager  was 
appointed;  but  such  suit  shall  be  subject  to  the  general  equity  jurisdic- 
tion of  the  court  in  which  such  manager  or  receiver  was  appointed  so  far 
as  the  same  may  be  necessary  to  the  ends  of  justice. 

§  67  (Re-enacting  §  7  of  Act  of  Aug.  13,  1888,  c.  866).  No  person  shall 
be  appointed  to  or  employed  in  any  office  or  duty  in  any  court  who  is 
related  by  affinity  or  consanguinity  within  the  degree  of  first  cousin  to  the 
judge  of  such  court.  (36  Stats.  1088;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  548; 
1  U.  S.  Comp.  Stats.  1916,  §  1049.  See  Elgutter  et  al.  v.  Northwestern 
Mutual  Life  Ins.  Co.,  86  Fed.  500,  30  C.  C.  A.  218.) 

Amendment  Dec.  21,  1911,  c.  4.  "Provided,  That  no  such  person  at 
present  holding  a  position  or  employment  in  a  circuit  court  shall  be  de- 
barred from  similar  appointment  or  employment  in~  the  district  court 
succeeding  to  such  circuit  court  jurisdiction." 

§  68  (Re-enacting  act  of  March  3,  1879,  c.  183).  No  clerk  of  a  district 
court  of  the  United  States  or  his  deputy  shall  be  appointed  a  receiver  or 
master  in  any  case,  except  where  the  judge  of  said  court  shall  determine 
that  special  reasons  exist  therefor,  to, be  assigned  in  the  order  of  appoint- 
ment. (36  Stats.  1105;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  548;  1  U.  S.  Comp. 
Stats.  1916,  §  1050,  p.  1220.  In  general,  Briggs  v.  Neal  et  al.,  120  Fed. 
224,  56  C.  C.  A.  572.) 


THE   JUDICIAL    CODE, 


691 


CHAPTER  FIVE. 

DISTRICT  COURTS— DISTRICTS,  AND  PROVISIONS  APPLICABLE  TO 
PARTICULAR  STATES. 


SE0. 

09.  Judicial  districts. 

70.  Alabama. 

71.  Arkansas. 

72.  California. 

73.  Colorado. 

74.  Connecticut. 

75.  Delaware. 

76.  Florida. 

77.  Georgia. 
7£.  Idaho. 

79.  Illinois. 

80.  Indiana. 

81.  Iowa. 

82.  Kansas. 

83.  Kentucky. 

84.  Louisiana. 

85.  Maine. 

86.  Maryland. 

87.  Massachuoetts. 

88.  Michigan. 

89.  Minnesota. 

90.  Mississippi. 

91.  Missouri. 

92.  Montana. 


SEC. 

93.  Nebraska. 

94.  Nevada. 

95.  New  Hampshire. 

96.  New  Jersey. 

97.  New  York. 

98.  North  Carolina. 

99.  North  Dakota. 

100.  Ohio. 

101.  Oklahoma. 

102.  Oregon. 

103.  Pennsylvania, 

104.  Rhode  Island. 

105.  South  Carolina. 

106.  South  Dakota, 

107.  Tennessee. 

108.  Texas. 

109.  Utah. 

110.  Vermont. 

111.  Virginia. 

112.  Washington. 

113.  West  Virginia. 

114.  Wisconsin. 

115.  Wyoming.  . 


§  69.     (Re-enacting  §  297,  Rev.  Stats.)     The  United  States  are  divided 
into  judicial  districts  as  follows:  36  Stats.  1105. 

,  §70,  as  Amended  Act  Feb.  28,  1913,  c.  89.  (Drawn  from  §532, 
Rev.  Stats.)  The  state  of  Alabama  is  divided  into  three  judicial  dis- 
tricts, to  be  known  as  the  northern,  middle,  and  southern  districts  of 
Alabama.  The  northern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Cullman,  Jackson,  Lawrence,  Limestone,  Madison,  and  Morgan, 
which  shall  constitute  the  northeastern  division  of  said  district ;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Colbert,  Franklin,  and  Lauderdale,  which  shall  constitute  the  north- 
western division  of  said  district;  also  the  territory  embraced  on  the* 
date  last  mentioned  in  the  counties  of  Cherokee,  Dekalb,  Etowah, 
Marshall,  and  Saint  Clair,  which  shall  constitute  the  middle  division 
of  said  district;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Blount,  Jefferson,  and  Shelby,  which  shall 
constitute  the  southern  division  of  said  district;  also  the  territory 


692  APPENDIX. 

embraced  on  the  date  last  mentioned  in  the  counties  of  Walker, 
Winston,  Marion,  Fayette,  and  Lamar,  which  shall  constitute  the 
Jasper  division  of  said  district;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Calhoun,  Clay,  Cleburne,  and 
Talladega,  which  shall  constitute  the  eastern  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Bibb,  Greene,  Pickens,  Sumter,  and  Tuscaloosa,  which  shall  con- 
stitute the  western  division  of  said  district.  Terms  of  the  district 
court  for  the  northeastern  division  shall  be  held  at  Huntsville  on  the 
first  Tuesday  in  April  and  the  second  Tuesday  in  October;  for  the 
northwestern  division,  at  Florence  on  the  second  Tuesday  in  February 
and  the  third  Tuesday  in  October:  Provided,  That  suitable  rooms  and 
accommodations  for  holding  court  at  Florence  shall  be  furnished  free 
of  expense  to  the  government;  for  the  middle  division,  at  Gadsden  on 
the  first  Tuesdays  in  February  and  August:  Provided,  That  suitable 
rooms  and  accommodations  for  the  holding  court  at  Gadsden  shall  be 
furnished  free  of  expense  to  the  government ;  for  the  southern  division, 
at  Birmingham  on  the  first  Mondays  in  March  and  September,  which 
courts  shall  remain  in  session  for  the  transaction  of  business  at  least 
six  months  in  each  calendar  year;  for  the  Jasper  division,  at  Jasper 
on  the  second  Tuesdays  in  January  and  June;  Provided,  That  suitable 
rooms  and  accommodations  for  holding  court  at  Jasper  shall  be  fur- 
nished free  of  expense  to  the  government;  for  the  eastern  division,  at 
Anniston  on  the  first  Mondays  in  May  and  November;  and  for  the 
western  division,  at  Tuscaloosa,  on  the  first  Tuesdays  in  January  and 
June.  The  clerk  of  the  court  for  the  northern  district  shall  maintain 
an  office  in  charge  of  himself  or  a  deputy  at  Anniston,  at  Florence, 
at  Jasper,  and  at  Gadsden,  which  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  said  court.  The  district  judge  for 
the  northern  district  shall  reside  at  Birmingham.  The  middle  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Autauga,  Barbour,  Bullock,  Butler, 
Chilton,  Coosa,  Covington,  Crenshaw,  Elmore,  Lowndes,  Montgomery, 
and  Pike,  which  shall  constitute  the  northern  division  of  said  district; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Coffee,  Dale,  Geneva,  Henry,  and  Houston,  which  shall  constitute 
the  southern  division  of  said  district;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Chambers,  Lee,  Macon, 
Randolph,  Russell,  and  Tallapoosa,  which  shall  constitute  the  eastern 
division  of  said  middle  judicial  district.  Terms  of  the  district  court 
for  the  northern  division  shall  be  held  at  Montgomery  on  the  first 


THE    JUDICIAL    CODE.  693 

Tuesdays  in  May  and  December;  and  for  the  southern  division,  at 
Dothan  on  the  first  Mondays  in  June  and  December  and  for  the  eastern 
division,  at  Opelika  on  the  first  Mondays  in  April  and  November: 
Provided,  That  suitable  rooms  and  accommodations  for  holding  court 
at  Opelika  shall  be  furnished  free  of  expense  to  the  government.  The 
clerk  of  the  court  for  the  middle  district  shall  maintain  an  office,  in 
charge  of  himself  or  a  deputy,  at  Dothan,  and  shall  maintain  an  office 
in  charge  of  himself  or  a  deputy  at  Opelika,  which  said  offices  at 
Dothan  and  Opelika  shall  be  kept  open  at  all  times  for  the  transaction 
of  the  business  of  said  divisions.  The  southern  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Baldwin,  Choctaw,  Clarke,  Conecuh,  Escambia, 
Mobile,  Monroe,  and  Washington,  which  shall  constitute  the  southern 
division  of  said  district ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Dallas,  Hale,  Marengo,  Perry,  and  Wil- 
cox,  which  shall  constitute  the  northern  division  of  said  district.  Terms 
of  the  district  court  for  the  southern  division  shall  be  held  at  Mobile 
on  the  fourth  Mondays  in  May  and  November;  and  for  the  northern 
division  at  Selma  on  the  first  Mondays  in  May  and  November.  (5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  552;  2  U.  S.  Comp.  Stats.  1916,  §  1052.) 

§71.  (Drawn  from  §533,  Rev.  Stats.)  The  state  of  Arkansas  is 
divided  into  two  districts,  to  be  known  as  the  eastern  and  western  dis- 
tricts of  Arkansas.  The  western  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Sevier,  Howard,  Little  River,  Pike,  Hempstead,  Miller, 
Lafayette,  Columbia,  Nevada,  Ouachita,  Union,  and  Calhoun,  which 
shall  constitute  the  Texarkana  division  of  said  district;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of  Polk, 
Scott,  Yell,  Logan,  Sebastian,  Franklin,  Crawford,  Washington,  Ben- 
ton,  and  Johnson,  which  shall  constitute  the  Fort  Smith  division  of 
said  district;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Baxter,  Boone,  Carroll,  Madison,  Marion,  Newton, 
and  Searcy,  which  shall  constitute  the  Harrison  division  of  said  dis- 
trict. ,  Terms  of  the  district  court  for  the  Texarkana  division  shall  be 
held  at  Texarkana  on  the  second  Mondays  in  May  and  November ;  for 
the  Fort  Smith  division,  at  Fort  Smith  on  the  second  Mondays  in 
^January  and  June;  and  for  the  Harrison  division,  at  Harrison  on  the 
second  Mondays  in  April  and  October.  The  eastern  district  shall  in- 
clude the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  t-cn,  in  the  counties  of  Lee,  Phillips,  Saint  Francis,  Cross,  Monroe, 
and  Woodruff,  which  constitute  the  eastern  division  of  said  district; 


694  APPENDIX. 

also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Independence,  Cleburne,  Stone,  Izard,  Sharp,  and  Jackson,  which 
shall  constitute  the  northern  division  of  said  district;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of  Critten- 
den,  Clay,  Craighead,  Greene,  Mississippi,  Poinsett,  Fulton,  Randolph, 
and  Lawrence,  which  shall  constitute  the  Jonesboro  division  of  said 
district;  and  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Arkansas,  Ashley,  Bradley,  Chicot,  Clark,  Cleveland, 
Conway,  Dallas,  Desha,  Drew,  Faulkner,  Garland,  Grant,  Hot  Spring, 
Jefferson,  Lincoln,  Lonoke,  Montgomery,  Perry,  Pope,  Prairie,  Pulaski, 
Saline,  Van  Buren,  and  White,  which  shall  constitute  the  western 
division  of  said  district.  Terms  of  the  district  court  for  the  eastern 
division  shall  be  held  at  Helena  on  the  second  Monday  in  March  and 
the  first  Monday  in  October;  for  the  northern  division,  at  Batesville 
on  the  fourth  Monday  in  May  and  the  second  Monday  in  December; 
for  the  Jonesboro  division,  at  Jonesboro  on  the  second  Mondays  in 
May  and  November;  and  for  the  western  division,  at  Little  Rock  on 
the  first  Monday  in  April  and  the  third  Monday  in  October.  The  clerk 
of  the  court  for  the  eastern  district  shall  maintain  an  office  in  charge 
of  himself  or  a  deputy  at  Little  Rock,  at  Helena,  at  Jonesboro,  and 
at  Batesville,  which  shall  be  kept  open  at  all  times  for  the  transaction 
of  the  business  of  the  court.  And  the  clerk  of  the  court  for  the 
western  district  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Fort  Smith,  at  Harrison,  and  at  Texarkana,  which  shall  be 
kept  open  at  all  times  for  the  transaction  of  the  business  of  the  court. 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  554;  2  U.  S.  Comp.  Stats.  1916,  §  1056.) 

Act  Sept.  9,  1914,  c.  295.  (Arkansas  Judicial  District — Terms  of 
Court.)  That  hereafter  the  terms  of  the  United  States  district  court 
for  the  Jonesboro  division  of  the  eastern  district  of  Arkansas  shall  be 
held  at  Jonesboro  on  the  first  Monday  in  May  and  the  fourth. Monday  in 
November.  (38  Stats.  713.) 

(Act  of  March  4,  1915,  c.  170.) 

§  1.  (Arkansas  eastern  district — Eastern  and  western  divisions — 
Boundaries  changed.)  That  the  counties  of  Desha  and  Chicot,  in  the 
State  of  Arkansas,  be,  and  the  same  are  hereby,  detached  from  the  western 
division  of  the  eastern  district  of  Arkansas  and  are  hereby  annexed  to,t 
included  in,  and  made  a  part  of  the  eastern  division  of  the  said  eastern 
district  of  the  State  of  Arkansas.  (38  Stats.  1193;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  1091;  2  U.  S.  Comp.  Stats.  1916,  §  1056b.) 


THE    JUDICIAL    CODE.  695 

§  2.  (Western  district  made  smaller.)  That  the  county  of  Yell,  in 
the  State  of  Arkansas,  be,  and  the  same  is  hereby,  detached  from  the  Fort 
Smith  division  of  the  western  district  of  Arkansas  and  is  annexed  to,  in- 
cluded in,  and  made  a  part  of  the  western  division  of  the  eastern  district 
of  the  State  of  Arkansas.  (38  Stats.  1193;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  1091;  2  U.  S.  Comp.  Stats.  1916,  §  1056c.) 

§  3.  (Jurisdiction  of  pending  cases.)  That  this  Act  shall  in  no  wise 
affect  the  jurisdiction  as  to  actions  at  law  or  suits  in  equity  now  pending, 
but  all  actions  at  law  and  suits  in  equity  now  pending  in  the  respective 
districts  and  divisions  having  jurisdiction  thereof  at  the  time  of  the  pas- 
sage of  this  Act  shall  proceed  as  if  this  Act  had  not  been  passed.  (38 
Stats.  1193;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1091.) 

Act  Oct.  3,  1913,  c.  17,  §  1.  That  the  state  of  Arizona  shall  constitute 
one  judicial  district,  to  be  known  as  the  district  of  Arizona. 

Sec.  2.  That  terms  of  the  district  court  shall  be  held  in  Tucson  on 
the  first  Mondays  in  May  and  November;  at  Phoenix  on  the  first  Mon- 
days in  April  and  October;  at  Prescott  on  the  first  Mondays  in  March 
and  September;  and  at  Globe  on  the  first  Mondays  in  June  and  December. 
Causes,  civil  and  criminal,  may  be  transferred  by  the  court  or  judge 
thereof  from  any  of  the  aforesaid  places,  where  court  shall  be  held  in  said 
district,  to  any  of  the  places  herein  above  mentioned  in  said  district,  when 
the  convenience  of  the  parties  or  the  ends  of  justice  would  be  promoted 
by  the  transfer;  and  any  interlocutory  order  made  by  the  court  or  judge 
thereof  in  any  of  the  above-mentioned  places.  (5  Fed.  Stats.  Ann., 
2d  ed.,  p.  1090;  2  U.  S.  Comp.  Stats.  1916,  §  1054.) 

§  31.  Act  June  20,  1910,  c.  310.  (One  judicial  district— Attached  to 
ninth  circuit — Judicial  officers.)  That  the  said  States,  when  admitted  as 
aforesaid,  shall  constitute  one  judicial  district,  and  the  circuit  and  district 
courts  of  said  district  shall  be  held  at  the  capital  of  said  State,  and  the  said 
district  shall,  for  judicial  purposes,  be  attached  to  the  ninth  judicial  circuit. 
There  shall  be  appointed  for  said  district  one  district  judge,  one  United 
States  attorney,  and  one  United  States  marshal.  The  judge  of  said  district 
shall  receive  a  yearly  salary  the  same  as  other  similar  judges  of  the  United 
States,  payable  as  provided  for  bjr  law,  and  shall  reside  in  the  district  to 
which  he  is  appointed.  There  shall  be  appointed  clerks  of  said  courts  who 
shall  keep  their  offices  at  the  capital  of  said  State.  The  regular  terms  of 
said  courts  shall  be  held  on  the  first  Monday  in  April  and  the  first  Monday 
in  October  of  each  year.  The  circuit  and  district  courts  for  said  district, 
and  the  judges  thereof,  respectively,  shall  possess  the  same  powers  and 


696  APPENDIX. 

jurisdiction  and  perform  the  same  duties  required  to  be  performed  by  tbe 
other  circuit  and  district  courts  and  judges  of  the  United  States,  and  shall 
be  governed  by  the  same  laws  and  regulations.  The  marshal,  district 
attorney,  and  the  clerks  of  the  circuit  and  district  courts  of  said  district, 
and  all  other  officers  and  persons  performing  duties  in  the  administration 
of  justice  therein,  shall  severally  possess  the  powers  and  perform  the 
duties  lawfully  possessed  and  required  to  be  performed  by  similar  officers 
in  other  districts  of  the  United  States,  and  shall,  for  the  services  they  per- 
form, receive  the  fees  and  compensation  now  allowed  by  law  to  officers 
performing  similar  services  for  the  United  States  in  the  Territory  of 
Arizona.  (36  Stats.  576;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1090.) 

§  72.  (Drawn  from  §  531,  Rev.  Stats.)  The  state  of  California  is 
divided  into  two  districts,  to  be  known  as  the  northern  and  southern  dis- 
tricts of  California.  The  southern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Fresno,  Inyo,  Kern,  Kings,  Madera,  Mariposa,  Merced,  and  Tulare, 
which  shall  constitute  the  northern  division  of  said  district;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of  Imperial, 
Los  Angeles,  Orange,  Riverside,  San  Bernardino,  San  Diego,  San  Luis 
Obispo,  Santa  Barbara,  and  Ventura,  which  shall  constitute  the  southern 
division  of  said  district.  Terms  of  the  district  court  for  the  northern 
division  shall  be  held  at  Fresno  on  the  first  Monday  in  May  and  the 
second  Monday  in  November ;  and  for  the  southern  division  at  Los  Angeles, 
on  the  second  Monday  in  January  and  the  second  Monday  in  July,  and 
at  San  Diego  on  the  second  Mondays  in  March  and  September.  The 
northern  district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Alameda,  Alpine, 
Amador,  Butte,  Calaveras,  Colusa,  Contra  Costa,  Del  Norte,  El  Dorado, 
Glenn,  Humboldt,  Lake,  Lassen,  Marin,  Mendocino,  Modoc,  Mono,  Mon- 
terey, Napa,  Nevada,  Placer,  Plumas,  Sacramento,  San  Benito,  San  Fran- 
cisco, San  Joaquin,  San  Mateo,  Santa  Clara,  Santa  Cruz,  Shasta,  Sierra, 
Siskiyou,  Solano,  Sonoma,  Stanislaus,  Sutter,  Tehama,  Trinity,  Tuolumne, 
Yolo  and  Yuba.  Terms  of  the  district  court  for  the  northern  district 
shall  be  held  at  San  Francisco  on  the  first  Monday  in  March,  the  second 
Monday  in  July,  and  the  first  Monday  in  November;  at  Sacramento  on 
the  second  Monday  in  April;  and  at  Eureka  on  the  third  Monday  in  July. 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  555;  2  U.  S.  Comp.  Stats.  1916,  §  1057.) 

(Act  of  June  12,  1916.) 

§  73.  (As  amended.)  That  the  State  of  Colorado  shall  constitute  one 
judicial  district,  to  be  known  as  the  district  of  Colorado.  Terms  of  the 


THE    JUDICIAL    CODE.  697 

district  court  shall  be  held  at  Denver  on  the  first  Tuesday  in  May  and 
November;  at  Pueblo  on  the  first  Tuesday  in  April;  at  Grand  Junction 
on  the  second  Tuesday  in  September;  at  Montrose  on  the  third  Tuesday 
in  September,  and  at  Durango  on  the  fourth  Tuesday  in  September. 

That  the  Secretary  of  the  Treasury,  in  constructing  the  public  build- 
ings heretofore  authorized  to  be  constructed  at  the  cities  of  Grand  Junc- 
tion and  Durango,  be,  and  he  is  hereby,  authorized  and  empowered  to 
provide  accommodations  in  each  of  said  buildings  for  postoffice,  United 
States  court,  and  other  governmental  offices,  and  the  existing  authoriza- 
tions for  said  buildings  be  and  the  same  are  hereby  respectively  amended 
accordingly;  and  the  unexpended  balance  of  all  appropriations  hereto- 
fore made  for  the  construction  of  said  buildings  and  all  appropriations 
which  may  be  provided  in  any  pending  legislation,  or  that  hereafter  may 
be  made  for  the  construction  of  said  buildings,  are  hereby  made  available 
for  the  purpose  stated  in  this  paragraph:  Provided,  That  if  at  the 
time  the  holding  of  the  terms  of  said  court  in  any  year  in  either  of 
said  cities  of  Grand  Junction  and  Durango  there  is  no  business  to  be 
transacted  by  said  court,  the  term  may  be  adjourned  or  continued  by 
order  of  the  judge  of  said  court  in  chambers  at  Denver,  Colorado:  And 
provided  further,  That  the  marshal  and  clerk  of  said  court  shall  each 
respectively  appoint  at  least  one  deputy  to  reside  at  and  who  shall  main- 
tain an  office  at  each  of  the  four  said  places  where  said  court  is  to  be  held 
by  the  terms  of  this  Act. 

§  74.  (Re-enacting  §  531,  Rev.  Stats.)  The  state  of  Connecticut  shall 
constitute  one  judicial  district,  to  be  known  as  the  district  of  Con- 
necticut. Terms  of  the  district  court  shall  be  held  at  New  Haven  on  the 
fourth  Tuesdays  in  February  and  September,  and  at  Hartford  on  the 
fourth  Tuesday  in  May  and  the  first  Tuesday  in  December.  (5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  557;  2  U.  S.  Comp.  Stats.  1916,  §  1059.) 

§  75.  (Re-enacting  §  531,  Rev.  Stats.)  The  state  of  Delaware  shall 
constitute  one  judicial  district,  to  be  known. as  the  district  of  Delaware. 
Terms  of  the  district  court  shall  be  held  at  Wilmington  on  the  second 
Tuesdays  in  March,  June,  September,  and  December."  (5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  557;  2  U.  S.  Comp.  Stats.  1916,  §  1060. 

§  76.  (Re-enacting  §  534,  Rev.  Stats.)  The  state  of  Florida  is  di- 
vided into  two  districts,  to  be  known  as  the  northern  and  southern  dis- 
tricts of  Florida.  The  southern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Baker,  Bradford,  Brevard,  Citrus,  Clay,  Columbia,  Dade, 
De  Soto,  Duva,  Hamilton,  Hernando,  Hillsboro,  Lake,  Lee,  Madison,  Man- 


698  APPENDIX 

atee,  Marion,  Monroe,  Nassau,  Orange,  Osceola,  Palm  Beach,  Pasco,  Polk, 
Putnam,  Saint  John,  Sumter,  Suwanee,  Saint  Lucie,  and  Volusia.  Terms 
of  the  district  court  for  the  southern  district  shall  be  held  at  Ocala  on 
the  third  Monday  in  January;  at  Tampa  on  the  second  Monday  in 
February;  at  Key  West  on  the  first  Mondays  in  May  and  November; 
at  Jacksonville  on  the  first  Monday  in  December;  at  Fernandina  on  the 
first  Monday  in  April;  and  at  Miami  on  the  fourth  Monday  in  April. 
The  district  court  for  the  southern  district  shall  be  open  at  all  times 
for  the  purpose  of  hearing  and  deciding  causes  of  admiralty  and 
maritime  jurisdiction.  The  northern  district  shall  include  the  territory 
embraced  on  the  first  day  oi  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Alachua,  Calhoun,  Escambia,  Franklin,  Gadsden,  Holmes, 
Jackson,  Jefferson,  Lafayette,  Leon,  Levy,  Liberty,  Santa  Rosa,  Taylor, 
Wakulla,  Walton,  and  Washington.  Terms  of  the  district  court  for 
the  northern  district  shall  be  held  at  Tallahassee  on  the  second  Monday 
in  January;  at  Pensacola  on  the  first  Mondays  in  May  and  November; 
at  Marianna  on  the  first  Monday  in  April;  and  at  Gainesville  on  the 
second  Mondays  in  June  and  December.  (5  Fed.  Stats.  Ann.,  2d  ed., 
p.  558;  2  U.  S.  Comp.  Stats.  1916,  §  1061.) 

§  77.  (Re-enacting  §  535,  Rev.  Stats.,  as  amended  March  4,  1913, 
c.  167.)  The  state  of  Georgia  is  divided  into  two  districts,  to  be  known 
as  the  northern  and  southern  districts  of  Georgia.  The  northern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Campbell,  Carroll,  Clayton, 
Cobb,  Coweta,  Cherokee,  Dekalb,  Douglas,  Dawson,  Fannin,  Fayette, 
Fulton,  Forsyth,  Gilmer,  Gwinnett,  Hall,  Henry,  Lumpkin,  Milton, 
Newton,  Pickens,  Rockdale,  Spalding,  Towns,  and  Union,  which  shall 
constitute  the  northern  division  of  said  district;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Banks,  Clarke, 
Elbert,  Franklin,  Greene,  Habersham,  Hart,  Jackson,  Morgan,  Madison, 
Oglethorpe,  Oconee,  Rabun,  Stephens,  Walton,  and  White,  which  shall 
constitute  the  eastern  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Chattahoochee, 
Clay,  Early,  Harris,  Heard,  Meriwether,  Marion,  Muscogee,  Quitman, 
Randolph,  Schley,  Stewart,  Talbot,  Taylor,  Terrell,  Troup,  and  Web- 
ster, which  shall  constitute  the  western  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Bartow,  Chattooga,  Catoosa,  Dade,  Floyd,  Gordon,  Haralson,  Murray, 
Paulding,  Polk,  Walker,  and  Whitfield,  which  shall  constitute  the  north- 
western division  of  said  district.  Terms  of  the  district  court  for 
northern  division  of  said  district  shall  be  held  at  Atlanta  on  the  second 


THE   JUDICIAL  OODB.  699 

Monday  in  March  and  the  first  Monday  in  October  and  at  Gainesville 
on  the  fourth  Mondays  in  April  and  November,  and  it  shall  be  the  duty 
of  the  judge  to  assign  such  cases,  both  civil  and  criminal,  as  may  in  his 
judgment  be  most  convenient  to  the  parties  to  said  cases,  and  as  may 
be  in  the  interest  of  economical  expenditures  by  the  government;  for 
the  eastern  division  at  Athens  on  the  second  Monday  in  April  and  the 
first  Monday  in  November;  for  the  western  division,  at  Columbus  on 
the  first  Mondays  in  May  and  December;  and  for  the  northwestern 
division,  at  Rome  on  the  third  Mondays  in  May  and  November.  The 
clerk  of  the  court  for  the  northern  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Athens,  at  Columbus,  and  at  Rome, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court.  The  southern  district  shall  include  the  territory  em- 
braced on  the  said  first  day  of  July,  nineteen  hundred  arid  ten,  in  the 
counties  of  Appling,  Bulloch,  Bryan,  Camden,  Chatham,  Emanuel, 
Effingham,  Glynn,  Jeff  Davis,  Liberty,  Montgomery,  Mclntosh,  Screven, 
Tatnall,  Toombs,  and  Wayne,  which  shall  constitute  the  eastern  divi- 
sion of  said  district;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Baldwin,  Bibb,  Butts,  Crawford,  Dodge,  Dooly, 
Hancock,  Houston,  Jasper,  Jones,  Laurens,  Macon,  Monroe,  Pike,  Pulaski, 
Putnam,  Sumter,  Telfair,  Twiggs,  Upson,  Wilcox,  and  Wilkinson,  which 
shall  constitute  the  western  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Burke,  Columbia,  Glascock,  Jeffer- 
son, Jenkins,  Johnson,  Lincoln,  McDuffie,  Richmond,  Taliaferro,  Wash- 
ington, Wilkes,  and  Warren,  which  shall  constitute  the  northeastern 
division ;  also  the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Berrien,  Brooks,  Charlton,  Clinch,  Coffee,  Decatur,  Echols,  Grady, 
Irwin,  Lowndes,  Pierce,  and  Ware^  which  shall  constitute  the  south- 
western division;  and  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Baker,  Ben  Hill,  Calhoun,  Crisp,  Colquitt, 
Dougherty,  Lee,  Miller,  Mitchell,  Thomas,  Tift,  Turner,  and  Worth,  which 
shall  constitute  the  Albany  division.  Terms  of  the  district  court  for  the 
western  division  shall  be  held  at  Macon  on  the  first  Mondays  in  May  and 
October;  for  the  eastern  division,  at  Savannah  on  the  second  Tuesdays 
in  February,  May,  August,  and  November;  for  the  northeastern  division, 
at  Augusta  on  the  first  Monday  in  April  and  the  third  Monday  in  Novem- 
ber; for  the  southwestern  division,  at  Valdosta  on  the  second  Mondays  in 
June  and  December;  and  for  the  Albany  division,  at  Albany  on  the  third 
Mondays  in  June  and  December.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  559; 
2  U.  S.  Coinp.  Stats.  1916,  §  1062.) 


700  APPENDIX. 

(Act  of  March  3,  1915,  c.  96.) 

§  1.  (Georgia  southern  district — Additional  district  judge.)  That  the 
President  of  the  United  States  shall  appoint  an  additional  district  judge 
for  the  southern  district  of  the  State  of  Georgia,  by  and  with  the  consent 
of  the  Senate,  who  shall  reside  in  the  said  district  and  shall  possess  the 
same  qualifications  and  have  the  same  power  and  jurisdiction  and  receive 
the  same  salary  now  prescribed  by  law  in  respect  of  the  present  district 
judge  therein;  Provided,  however,  That  the  President  shall  make  public 
all  indorsements  made  on  behalf  of  the  person  appointed  as  such  district 
judge.  (38  Stats.  959;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1092.) 

§  2.  (Vacancy  in  office.)  That  whenever  a  vacancy  shall  occur  in  the 
office  of  the  district  judge  for  the  southern  district  of  the  State  of  Georgia 
senior  in  commission  such  vacancy  shall  not  be  filled,  and  thereafter  there 
shall  be  but  one  district  judge  in  said  district.  (38  Stats.  960;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  1092.) 

(Act  of  March  3,  1915,  c.  98.) 

(Georgia  northern  district — Boundaries  enlarged.)  That  the  county  of 
Barrow,  in  the  State  of  Georgia,  is  hereby  attached  to  and  made  a  part 
of  the  eastern  division  of  the  northern  judicial  district  of  said  State. 
(38  Stats.  960;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1092;  2  U.  S.  Comp.  Stats. 
1916,  §1062a.) 

(Act  of  March  3,  1915,  c.  99.) 

§  1.  (Georgia  southern  district — Eastern  division — Boundaries  en- 
larged.) That  the  counties  of  Candler,  Jenkins,  and  Evans,  in  the  State 
of  Georgia,  are  hereby  attached  to  and  made  a  part  of  the  eastern  divi- 
sion of  the  southern  judicial  district  of  said  State.  (38  Stats.  960;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  1092;  2  U.  S.  Comp.  Stats.  1916,  §  1062b.) 

§  2.  (Southwestern  division — Boundaries  enlarged.)  That  the  coun- 
ties of  Bacon  and  Thomas,  in  the  State  of  Georgia,  are  hereby  attached 
to  and  made  a  part  of  the  southwestern  division  of  the  southern  judicial 
district  of  said  State.  (38  Stats.  961;  5  Fed.  Stats,  Ann.,  2d  ed.,  p.  1093; 
2  U.  S.  Comp.  Stats.,  1916,  §  1062c.) 

§78.  (Re-enacting  26  Stats.  217;  27  Stats.  72;  28  Stats.  5;  30  Stats. 
423.)  The  state  of  Idaho  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Idaho.  It  is  divided  into  four  divisions,  to  be 
known  as  the  northern,  central,  southern,  and  eastern  divisions.  The 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 


THE    JUDICIAL    CODE.  701 

the  counties  of  Bonner,  Kootenai,  and  Shoshone,  shall  constitute  the  north- 
ern division  of  said  district;  and  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Idaho,  Latah,  and  Nez  Perce,  shall  con- 
stitute the  central  division  of  said  district ;  and  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Ada,  Boise,  Elaine,  Cassia, 
Twin  Falls,  Canyon,  Elmore,  Lincoln,  Owyhee,  and  Washington,  shall 
constitute  the  southern  division  of  said  district;  and  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Bannock,  Bear 
Lake,  Bingham,  Custer,  Fremont,  Lemhi,  and  Oneida,  shall  constitute 
the  eastern  division  of  said  district.  Terms  of  the  district  court  for 
the  northern  division  of  said  district  shall  be  held  at  Coeur  d'Alene 
City  on  the  fourth  Monday  in  May  and  the  third  Monday  in  Novem- 
ber; for  the  central  division,  at  Moscow  on  the  second  Monday  in  May 
and  the  first  Monday  in  November;  for  the  southern  division,  at  Boise 
City  on  the  second  Mondays  in  February  and  September;  and  for  the 
eastern  division,  at  Pocatello  on  the  second  Mondays  in  March  and  Octo- 
ber. The  clerk  of  the  court  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  Coeur  d'Alene  City,  at  Moscow,  at  Boise  City,  and  at 
Pocatello,  which  shall  be  open  at  all  times  for  the  transaction  of  the  busi- 
ness of  the  court.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  560;  2  U.  S.  Comp. 
Stats.  1916,  §  1063.) 

§  79.  (Re-enacting  §  536,  Rev.  Stats.)  The  state  of  Illinois  is  di- 
vided into  three  districts,  to  be  known  as  the  northern,  southern, 
and  eastern  districts  of  Illinois.  The  northern  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Cook,  Dekalb,  Dupage,  Grundy,  Kane,  Kendall, 
Lake,  Lasalle,  McHenry,  and  Will,  which  shall  constitute  the  eastern 
division;  also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Boone,  Carroll,  Jo  Daviess,  Lee,  Ogle,  Stephenson, 
Whiteside,  and  Winnebago,  which  shall  constitute  the  western  division. 
Terms  of  the  district  court  for  the  eastern  division  shall  be  held  at 
Chicago  on  the  first  Mondays  in  February,  March,  April,  May,  June, 
July,  September,  October,  and  November,  and  the  third  Monday  in 
December;  and  for  the  western  division,  at  Freeport  on  the  third 
Mondays  in  April  and  October.  The  clerk  of  the  court  for  the  north- 
ern district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Chicago  and  at  Freeport,  which  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  the  court.  The  marshal  for  the 
northern  district  shall  maintain  an  office  in  the  division  in  which  he 
himself  does  not  reside,  and  shall  appoint  at  least  one  deputy  who 
shall  reside  therein.  The  southern  district  shall  include  the  territory 


702  APPENDIX. 

embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Bureau,  Fulton,  Henderson,  Henry,  Knox,  Livingston,  Mc- 
Donough,  Marshall,  Mercer,  Putnam,  Peoria,  Rock  Island,  Stark,  Taze- 
well,  Warren,  and  Woodford,  which  shall  constitute  the  northern  divi- 
sion; also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Adams,  Bond,  Brown,  Calhoun,  Cass,  Christian,  Dewitt, 
Greene,  Hancock,  Jersey,  Logan,  McLean,  Macon,  Macoupin,  Madison, 
Mason,  Menard,  Montgomery,  Morgan,  Pike,  Sangamon,  Schuyler,  and 
Scott,  which  shall  constitute  the  southern  division.  Terms  of  the  dis- 
trict court  for  the  northern  division  shall  be  held  at  Peoria  on  the  third 
Mondays  in  April  and  October;  for  the  southern  division  at  Springfield 
on  the  first  Mondays  in  January  and  June,  and  at  Quincy  on  the  first 
Mondays  in  March  and  September.  The  clerk  of  the  court  for  the 
southern  district  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Peoria,  at  Springfield,  and  at  Quincy,  which  shall  be  kept 
jopen  at  all  times  for  the  transaction  of  the  business  of  the  court.  The 
marshal  for  said  southern  district  shall  appoint  at  least  one  deputy 
residing  in  the  said  northern  district  who  shall  maintain  an  office  at 
Peoria.  The  eastern  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Alexander,  Champaign,  Clark,  Clay,  Clinton,  Coles,  Crawford,  Cumber- 
land, Douglas,  Edgar,  Edwards,  Effingham,  Fayette,  Ford,  Franklin, 
Gallatin,  Hamilton,  Hardin,  Iroquois,  Jackson,  Jasper,  Jefferson,  John- 
son, Kankakee,  Lawrence,  Marion,  Massac,  Monroe,  Moultrie,  Perry, 
,Piatt,  Pope,  Pulaski,  Randolph,  Richland,  Saint  Clair,  Saline,  Shelby, 
.Union,  Vermilion,  Wabash,  Washington,  Wayne,  White,  and  William- 
son. Terms  of  the  district  court  for  the  eastern  district  shall  be  held 
at  Danville  on  the  first  Mondays  in  March  and  September;  at  Cairo  on 
the  first  Mondays  in  April  and  October;  and  at  -East  Saint  Louis  on 
the  first  Mondays  in  May  and  November.  The  clerk  of  the  court  for 
the  eastern  district  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Danville,  at  Cairo,  and  at  East  Saint  Louis,  which  shall  be 
kept  open  at  all  times  for  the  transaction  of  the  business  of  the  court, 
and  shall  there  keep  the  records,  files,  and  documents  pertaining  to  the 
court  at  that  place.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  561;  2  U.  S.  Comp. 
Stats.  1916,  §  1064.) 

§80.  (Re-enacting  §531,  Rev.  Stats.)  The  state  of  Indiana  shall 
constitute  one  judicial  district,  to  be  known  as  the  district  of  Indiana. 
Terms  of  the  district  court  shall  be  held  at  Indianapolis  on  the  first 
Tuesdays  in  May  and  November;  at  New  Albany  on  the  first  Mondays 
in  January  and  July;  at  Evansville  on  the  first  Mondays  in  April  and 


THE  JUDICIAL  CODE.  703 

October;  at  Fort  Wayne  on  the  second  Tuesdays  in  June  and  Dec-ember; 
and  at  Hammond  on  the  third  Tuesdays  in  April  and  October.  The 
clerk  of  the  court  shall  appoint  four  deputy  clerks,  one  of  whom  shall 
reside  and  keep  his  office  at  New  Albany,  one  at  Evansville,  one  at  Fort 
Wayne,  and  one  at  Hammond.  Each  deputy  shall  keep  in  his  office  full 
records  of  all  actions  and  proceedings  of  the  district  court  held  at  that 
place.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  562;  2  U.  S.  Comp.  Stats.  1916, 
§  1065.) 

§  81.  (As  amended  Act  of  April  27,  1916.)  The  State  of  Iowa  is 
divided  into  two  judicial  districts,  to  be  known  as  the  northern  and 
southern  districts  of  Iowa. 

The  northern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Allamakee, 
Dubuque,  Buchanan,  Clayton,  Delaware,  Fayette,  Winneshiek,  Howard, 
Chickasaw,  Bremer,  Blackhawk,  Floyd,  Mitchell,  and  Jackson,  which 
shall  constitute  the  eastern  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Jones,  Cedar, 
Linn,  Iowa,  Benton,  Tama,  Grundy,  and  Hardin,  which  shall  constitute 
the  Cedar  Rapids  division ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Emmet,  Palo  Alto,  Pocahontas,  Calhoun, 
Carroll,  Kossuth,  Humboldt,  Webster,  Winnebago,  Hancock,  Wright, 
Hamilton,  Worth,  Cerro  Gordo,  Franklin,  and  Butler,  which  shall  con- 
stitute the  central  division;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Dickinson,  Clay,  Bueha  Vista,  Sac, 
Osceola,  O'Brien,  Cherokee,  Ida,  Lyon,  Sioux,  Plymouth,  Woodbury, 
and  Monona,  which  shall  constitute  the  western  division. 

Terms  of  the  district  court  for  the  eastern  division  shall  be  held  at 
Dubuque  on  the  fourth  Tuesday  in  April  and  the  first  Tuesday  in 
December,  and  at  Waterloo  on  the  second  Tuesdays  in  May  and  Sep- 
tember; for  the  Cedar  Rapids  division,  at  Cedar  Rapids  on  the  first 
Tuesday  in  April  and  the  fourth  Tuesday  in  September;  for  the  central 
division,  at  Fort  Dodge  on  the  second  Tuesdays  in  June  and  November; 
and  for  the  western  division,  at  Sioux  City  on  the  fourth  Tuesday  in 
May  and  the  third  Tuesday  in  October. 

The  southern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Louisa, 
Henry,  Des  Moines,  Lee,  and  Van  Buren,  which  shall  constitute  the 
eastern  division  of  said  district;  also  -the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Marshall,  Story,  Boone,  Greene, 
Guthrie,  Dallas,  Polk,  Jasper.  Poweshiek,  Marion,  Warren,  and  Madi- 
son, which  shall  constitute  the  central  division  of  said  district;  also 


704:  APPENDIX. 

the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Crawford,  Harrison,  Shelby,  Audubon,  Cass,  Pottawattamie,  Mills, 
and  Montgomery,  which  shall  constitute  the  western  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Adair,  Adams,  Clarke,  Decatur,  Fremont,  Lucas,  Page, 
Ringgold,  Taylor,  Union,  and  Wayne,  which  shall  constitute  the  south- 
ern division  of  said  district;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Scott,  Muscatine,  Washington,  John- 
son, and  Clinton,  which  shall  constitute  the  Davenport  division  of  said 
district;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Davis,  Appanoose,  Mahaska,  Keokuk,  Jefferson,  Monroe, 
and  Wapello,  which  shall  constitute  the  Ottumwa  division  of  said 
district. 

Terms  of  the  district  court  for  the  eastern  division  shall  be  held  at 
Keokuk  on  the  sixth  Tuesday  after  the  fourth  Tuesday  in  February 
and  the  eighth  Tuesday  after  the  third  Tuesday  in  September;  for  the 
central  division,  at  Des  Moines  on  the  tenth  Tuesday  after  the  fourth 
Tuesday  in  February  and  the  tenth  Tuesday  after  the  third  Tuesday 
in  September;  for  the  western  division,  at  Council  Bluffs  on  the  fourth 
Tuesday  in  February  and  the  sixth  Tuesday  after  the  third  Tuesday  in 
September;  for  the  southern  division,  at  Creston  on  the  fourth  Tues- 
day after  the  fourth  Tuesday  in  February  and  the  third  Tuesday  in 
September;  for  the  Davenport  division,  at  Davenport  on  the  eighth 
Tuesday  after  the  fourth  Tuesday  in  February  and  the  second  Tues- 
day after  the  third  Tuesday  in  September;  and  for  the  Ottumwa  divi- 
sion, at  Ottumwa  on  the  second  Tuesday  after  the  fourth  Tuesday  in 
February  and  the  fourth  Tuesday  after  the  third  Tuesday  in 
September. 

The  clerk  of  the  court  for  said  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Davenport  and  at  Ottumwa  for  the 
transaction  of  the  business  of  said  divisions.  (Pamphlet  Supp.  Fed. 
Stats.  Ann.,  No.  8,  p.  13  et  seq.,  title,  "Judiciary.") 

§  82.  (As  amended  Act  of  September  6,  1916.)  That  the  State  of 
Kansas  shall  constitute  one  judicial  district,  to  be  known  as  the  dis- 
trict of  Kansas.  It  is  divided  into  three  divisions,  to  be  known  as. 
the  first,  second,  and  third  divisions  of  the  district  of  Kansas.  The 
first  division  shall  include  the  territory  embraced  -on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Atchison,  Brown, 
Chase,  Cheyenne,  Clay,  Cloud,  Decatur,  Dickinson,  Doniphan,  Douglas, 
Ellis,  Franklin,  Geary,  Gove,  Graham,  Jackson,  Jefferson,  Jewell,  John- 
son, Leavenworth,  Lincoln,  Logan,  Lyon,  Marion,  Marshall,  Mitchell, 


THE   JUDICIAL   CODE.  705 

Morris,  Nemaha,  Norton,  Osage,  Osborne,  Ottawa,  Phillips,  Pottawa- 
tomic,  Rawlins,  Republic,  Riley,  Rooks,  Russell,  Saline,  Shawnee, 
Sheridan,  Sherman,  Smith,  Thomas,  Trego,  Wabaunsee,  Wallace, 
Washington,  and  Wyandotte.  The  second  division  shall  include  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Bar- 
ber, Barton,  Butler,  Clark,  Comanche,  Cowley,  Edwards.  Ellsworth, 
Finney,  Ford,  Grant,  Gray,  Greeley,  Hamilton,  Harper,  Harvey,  Hodge- 
man,  Haskell,  Kingman,  Kiowa,  Kearny,  Lane,  McPherson,  Morton, 
Meade,  Ness,  Pratt,  Pawnee,  Reno,  Rice,  Rush,  Scott,  Sedgwick,  Staf- 
ford, Stevens,  Seward,  Sumner,  Stanton,  and  Wichita.  The  third 
division  shall  include  the  territory  embraced  on  the  said  date  last  men- 
tioned in  the  counties  of  Allen,  Anderson,  Bourbon,  Cherokee,  Coffey, 
Chautauqua,  Crawford,  Elk,  Greenwood,  Labette,  Linn,  Miami,  Mont- 
gomery, Neosho,  Wilson,  and  Woodson.  Terms  of  the  district  court  for 
the  first  division  shall  be  held  at  Leavenworth  on  the  second  Monday 
in  October;  at'Topeka  on  the  second  Monday  in  April;  at  Kansas  City 
on  the  second  Monday  in  January  and  the  first  Monday  in  October; 
and  at  Salina  on  the  second  Monday  in  May ;  terms  of  the  district  court 
for  the  second  division  shall  be  held  at  Wichita  on  the  second  Mondays 
in  March  and  September;  and  for  the  third  division,  at  Fort  Scott  on 
the  first  Monday  in  May  and  the  second  Monday  in  November.  The 
clerk  of  the  district  court  shall  appoint  three  deputies,  one  of  whom 
shall  reside  and  keep  his  office  at  Fort  Scott,  one  at  Wichita,  and  the 
other  at  Salina,  and  the  marshal  shall  appoint  a  deputy  who  shall  re- 
side and  keep  his  office  at  Fort  Scott  and  the  marshal  shall  also  appoint 
a  deputy,  who  shall  reside  and  keep  his  office  at  Kansas  City. 

§83  (Re-enacting  §531,  Rev.  Stats.).  The  state  of  Kentucky  is 
divided  into  two  districts,  to  be  known  as  the  eastern  and  western  districts 
of  Kentucky.  The  eastern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Carroll,  Trimble,  Henry,  Shelby,  Anderson,  Mercer,  Boyle,  Gallatin, 
Boone,  Kenton,  Campbell,  Pendleton,  Grant,  Owen,  Franklin,  Bourbon, 
Scott,  Woodford,  Fayette,  Jessamine,  Garrard,  Madison,  Lincoln,  Rock- 
castle,  Pulaski,  Wayne,  Whitley,  Bell,  Knox,  Harlan,  Laurel,  Clay,  Leslie, 
Letcher,  Perry,  Owsley,  Jackson,  Estill,  Lee,  Breathitt,  Knott,  Pike,  Floyd, 
Magoffin,  Martin,  Johnson,  Lawrence,  Boyd,  Greenup,  Carter,  Elliott, 
Morgan,  Wolfe,  Powell,  Menifee,  Clark,  Montgomery,  Bath,  Rowan,  Lewis, 
Fleming,  Mason,  Bracken,  Robertson,  Nicholas,  and  Harrison,  with  the 
waters  thereof.  Terms  of  the  district  court  for  the  eastern  district  shall 
be  held  at  Frankfort  on  the  second  Monday  in  March  and  the  fourth 
Monday  in  September;  at  Covington  on  the  first  Monday  in  April  and  the 

Manual — 45 


706  APPENDIX. 

third  Monday  in  October;  at  Richmond  on  the  fourth  Monday  in  April 
and  the  second  Monday  in  November;  at  London  on  the  second  Monday 
in  May  and  the  fourth  Monday  in  November ;  at  Catlettsburg  on  the  fourth 
Monday  in  May  and  the  second  Monday  in  December;  and  at  Jackson  on 
the  first  Monday  in  March  and  the  third  Monday  in  September:  Provided, 
That  suitable  rooms  and  accommodations  are  furnished  for  holding  court 
at  Jackson,  free  of  expense  to  the  government  until  such  time  as  a  public 
building  shall  be  erected  there.  The  western  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Oldham,  Jefferson,  Spencer,  Bullitt,  Nelson,  Washington, 
Marion,  Larue,  Taylor,  Cassey,  Green,  Adair,  Russell,  Clinton,  Cumber- 
land, Monrpe,  Metcalfe,  Allen,  Barren,  Simpson,  Logan,  Warren,  Butler, 
Hart,  Edmonson,  Grayson,  Hardin,  Meade,  Breckinridge,  Hancock, 
Daviess,  Ohio,  McLean,  Muhlenberg,  Todd,  Christian,  Trigg,  Lyon,  Cald- 
well,  Livingston,  Crittenden,  Hopkins,  Webster,  Henderson,  Union,  Mar- 
shall, Galloway,. McCracken,  Graves,  Ballard,  Carlisle,  Hickman,  and  Ful- 
ton, with  the  waters  thereof.  Terms  of  the  district  court  for  the  western 
district  shall  be  held  at  Louisville  on  the  second  Mondays  in  March  and 
October;  at  Owensboro  on  the  first  Monday  in  May  and  the  fourth  Monday 
in  November;  at  Paducah  on  the  third  Mondays  in  April  and  November; 
and  at  Bowling  Green  on  the  third  Monday  in  May  and  the  second  Monday 
in  December.  The  clerk  of  the  court  for  the  eastern  district  shall  main- 
tain an  office  in  charge  of  himself  or  a  deputy  at  Frankfort,  at  Covington, 
at  Richmond,  at  London,  at  Catlettsburg,  and  at  Jackson;  and  the  clerk 
for  the  western  district  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Louisville,  at  Owensboro,  at  Paducah,  and  at  Bowling  Green, 
each  of  which  offices  shall  be  kept  open  at  all  times  for  the  transaction  of 
the  business  of  said  court.  The  clerks  of  the  courts  for  the  eastern  and 
western  districts,  upon  issuing  original  process  in  a  civil  action,  shall 
make  it  returnable  to  the  court  nearest  to  the  county  of  the  residence  of 
the  defendant,  or  of  that  defendant  whose  county  is  nearest  to  a  court, 
and  shall,  immediately  upon  payment  by  the  plaintiff  of  his  fees  accrued, 
send  the  papers  filed  to  the  clerk  of  the  court  to  which  the  process  is  made 
returnable;  and  whenever  the  process  is  not  thus  made  returnable,  any 
defendant  may,  upon  motion,  on  or  before  the  calling  of  the  cause,  have 
it  transferred  to  the  court  to  which  it  should  have'  been  sent  had  the  clerk 
known  the  residence  of  the  defendant  when  the  action  was  brought.  (5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  566;  2  U.  S.  Comp.  Stats.  1916,  §  1068.) 

§  84  (Re-enacting  Act  of  March  3, 1881,  c.  144  with  amendments  thereto). 
The  state  of  Louisiana  is  divided  into  two  judicial  districts,  to  be  known  as 
the  eastern  and  western  districts  of  Louisiana.  The  eastern  district  shall  in- 


THE  JUDICIAL,  CODE.  707 

elude  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  parishes  of  Assumption,  Iberia,  Jefferson,  Lafourche,  Orleans, 
Plaquemines,  Saint  Bernard,  Saint  Charles,  Saint  James,  Saint  John  the 
Baptist,  Saint  Mary,  Saint  Tammany,  Tangipahoa,  Terrebonne,  and 
Washington,  which  shall  constitute  the  New  Orleans  division;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  parishes  of  Ascension, 
East  Baton  Rouge,  East  Feliciana,  Livingston,  Pointe  Coupee,  Saint 
Helena,  West  Baton  Rouge,  Iberville,  and  West  Feliciana,  which  shall 
constitute  the  Baton  Rouge  division  of  said  district.  Terms  of  the  district 
court  for  the  New  Orleans  division  shall  be  held  at  New  Orleans  on  the 
third  Mondays  in  February,  May,  and  November;  and  for  the  Baton 
Rouge  division,  at  Baton  Rouge  on  the  second  Mondays  in  April  and 
November.  The  clerk  of  the  court  for  the  eastern  district  shall  maintain 
an  office  in  charge  of  himself  or  a  deputy  at  New  Orleans  and  at  Baton 
Rouge  which  shall  be  kept  open  at  all  times  for  the  transaction  of  the 
business  of  the  court.  The  western  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  par- 
ishes of  Saint  Landry,  Evangeline,  Saint  Martin,  Lafayette,  and  Ver- 
milion, which  shall  constitute  the  Opelousas  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  parishes  of 
Rapides,  Avoyelles,  Catahoula,  La  Salle,  Grant,  and  Winn,  which  shall 
constitute  the  Alexandria  division  of  said  district;  also  the  territory  em- 
braced on  the  said  date  last  mentioned  in  the  parishes  of  Caddo,  De  Soto, 
Bossier,  Webster,  Claiborne,  Bienville,  Natchitoches,  Sabine,  and  Red 
River,  which  shall  constitute  the  Shreveport  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  parishes  of  Oua- 
chita,  Franklin,  Richland,  Morehouse,  East  Carroll,  West  Carroll,  Madison, 
Tensas,  Concordia,  Union,  Caldwell,  Jackson,  and  Lincoln,  which  shall 
constitute  the  Monroe  division  of  said  district;  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  parishes  of  Acadia,  Calcasieu,  Cameron, 
and  Vernon,  which  shall  constitute  the  Lake  Charles  division  of  said  dis- 
trict. Terms  of  the  district  court  for  the  Opelousas  division  shall  be  held 
at  Opelousas  on  the  first  Mondays  in  January  and  June;  for  the  Alexan- 
dria division,  at  Alexandria  on  the  fourth  Mondays  in  January  and  June; 
for  the  Shreveport  division,  at  Shreveport  on  the  third  Mondays  in  Febru- 
ary and  October;  for  the  Monroe  division,  at  Monroe  on  the  first  Mondays 
in  April  and  October;  and  for  the  Lake  Charles  division,  at  Lake 
Charles  on  the  third  Mondays  in  May  and  December.  The  clerk  of  the 
court  for  the  western  district  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  Opelousas,  at  Alexandria,  at  Shreveport,  at  Monroe,  and  at 
Lake  Charles,  which  shall  be  kept  open  at  all  times  for  the  transaction  of 


708  APPENDIX. 

the  business  of  the  court.     (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  568;  2  U.  S. 
Comp.  Stats.  1916,  §  1069.) 

§85  (Re-enacting  §531,  Rev.  Stats.).  The  state  of  Maine  shall  con- 
stitute one  judicial  district,  to  be  known  as  the  district  of  Maine.  Terms 
of  the  district  court  shall  be  held  at  the  times  and  places  following:  At 
Portland,  on  the  first  Tuesday  in  April,  on  the  third  Tuesday  in  Septem- 
ber, and  on  the  second  Tuesday  in  December;  at  Bangor,  on  the  first  Tues- 
day in  June :  Provided,  however,  That  in  the  year  nineteen  hundred  and 
twelve  a  session  shall  be  also  held  at  Portland  on  the  first  Tuesday  in 
February.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  569;  2  U.  S.  Comp.  Stats. 
1916,  §  1070.) 

Act  Sept.  8,  1916,  c.  475. 

§  1.  [Maine  judicial  district — Sessions  of  court — "Division  of  dis- 
trict.] That  hereafter,  and  until  otherwise  provided  by  law,  two  sessions 
of  the  United  States  District  Court  for  the  District  of  Maine  shall  be  held 
in  each  and  every  year  in  the  city  of  Bangor,  in  said  district,  beginning, 
respectively,  on  the  first  Tuesday  of  February  and  the  first  Tuesday  of 
June,  and  three  sessions  of  said  court  shall  be  held  in  each  and  every  year 
in  the  city  of  Portland,  in  said  district,  beginning,  respectively,  on  the 
first  Tuesday  of  April,  on  the  third  Tuesday  of  September,  and  on  the 
second  Tuesday  in  December.  (2  U.  S.  Comp.  Stats.  1916,  §  1070a.) 

§  2.  [Clerks  and  marshals.]  The  clerk  of  said  district  court  for  said 
district  of  Maine  and  the  marshal  of  said  district  shall  each  at  all  times 
maintain  by  himself  or  by  deputy  an  office  in  charge  of  himself  or  deputy, 
both  at  said  city  of  Bangor  and  at  said  city  of  Portland.  The  deputy 
clerk  in  charge  of  the  office  in  the  division  in  which  the  clerk  does  not 
reside  himself  shall  reside  in  the  city  where  the  office  of  which  he  has 
charge  is  located.  That  said  marshal  shall  appoint  a  field  deputy,  who 
shall  have  charge  of  the  office  in  the  division  in  which  the  marshal  does 
not  reside  himself,  who  shall  reside  in  the  city  where  the  office  of  which 
he .  has  charge  is  located,  and  who,  within  and  for  said  division,  in  the 
absence  of  the  marshal,  shall  have  all  the  powers  of  the  marshal,  and  who 
shall  also,  throughout  said  district  of  Maine,  have  all  the  powers  of  other 
deputy  marshals.  And  such  field  deputy,  before  he  enters  on  the  duties 
of  his  office,  shall  give  bond  before  the  judge  of  said  district  of  like  tenor, 
effect,  and  amount  and  of  similar  form  and  condition,  with  like  sureties, 
and  to  be  approved  in  like  manner,  as  now  or  may  hereafter  be  required 
by  law  of  the  marshal  of  said  district.  (2  U.  S.  Comp.  Stats.  1916, 
§  1070b.) 


THE  JUDICIAL  CODE.  709 

§  3.  [Divisions — Number — Boundaries.]  That  for  the  purpose  of  hold- 
ing terms  of  the  United  States  district  court  the  district  of  Maine  as 
heretofore  constituted  shall  be  divided  into  two  divisions,  to  be  known, 
respectively,  as  the  northern  and  southern  divisions.  The  counties  of 
Aroostook,  Penobscot,  Piscataquis,  Washington,  Hancock,  Waldo,  and 
Somerset  shall  be  known  as  the  northern  division,  the  court  for  which 
shall  be  held  in  the  said  city  of  Bangor.  The  remaining  counties  in  said 
State  and  district  of  Maine  shall  constitute  the  southern  division,  the  court 
for  which  shall  be  held  in  the  said  city  of  Portland.  (2  U.  S.  Comp.  Stats. 
1916,  §  1070c.) 

§  4.  [Jurisdiction  and  venue — Divisions  as  separate  districts.]  That 
for  the  purpose  of  determining  the  jurisdiction  and  venue  of  all  causes, 
suits,  actions,  bills,  petitions,  matters,  libels,  proceedings,  prosecutions,  in- 
dictments, complaints,  informations,  and  other  judicial  business,  whether 
civil  or  criminal,  or  whether  in  equity,  in  admiralty,  in  prize,  in  forfeiture, 
or  in  condemnation,  in  rem,  in  personam,  or  mixed,  whatsoever,  cognizable 
in  the  United  States  district  court,  each  of  said  divisions  shall  be  as  if 
it  were  a  separate  and  distinct  judicial  district  of  the  United  States.  There 
shall  be  but  one  judge,  one  clerk,  one  marshal,  and  one  district  attorney 
for  said  district  of  Maine.  United  States  commissioners  in  either  of  said 
divisions,  until  otherwise  provided  by  law,  shall  be  appointed  and  have 
jurisdiction  and  cognizance  through  said  district  of  Maine  in  the  same 
manner  and  to  the  same  extent  and  effect  that  they  now  have  under  exist- 
ing law.  (2  U.  S.  Comp.  Stats.  1916,  §  1070d.) 

§  5.  [Transfer  of  causes  from  one  division  to  another.]  That  any 
cause,  suit,  action,  bill,  petition,  matter,  libel,  proceeding,  prosecution,  in- 
dictment, complaint,  information,  or  other  judicial  business,  whether  civil 
or  criminal,  or  whether  in  equity,  in  admiralty,  in  prize,  in  forfeiture,  or 
in  condemnation,  in  rem,  in  personam,  or  mixed,  whatsoever,  pending  in 
either  of  said  divisions,  when  all  the  parties  thereto  so  stipulate  in  writ- 
ing, and  where  the  ends  of  justice  or  the  convenience  of  the  parties  will 
be  promoted  thereby,  may,  at  the  discretion  of  the  court  or  judge,  be 
transferred  wholly  or  specially  for  the  hearing,  trial,  or  determination  of 
any  single  proceeding,  matter,  step,  or  motion  therein  from  one  of  said 
divisions  to  the  other.  On  request  of  all  accused  in  any  criminal  prosecu- 
tion and  of  all  claimants  in  any  cause,  proceeding,  libel,  information,  or 
other  matter  in  rem,  the  same  may  be  transferred,  at  the  discretion  of 
the  court  or  judge  from  one  of  said  divisions  to  the  division  in  which  a 
term  of  said  court  is  next  to  be  held,  without  the  joinder  in  such  request 


710  APPENDIX. 

of  the  United  States  when  the  Government  is  the  only  other  party  thereto 
not  joining  in  such  request.     (2  U.  S.  Comp.  Stats.  1916,  §  1070e.) 

§  6.  [Ex  parte,  etc.,  proceedings — Hearings  by  consent.]  That  all  ex 
parte,  of  course,  default  and  pro  confesso,  proceedings  and  matters,  and 
all  interlocutory  matters  in  which  all  interested  parties  are  present  and 
consenting  that  such  hearing  may  be  had,  in  whichever  of  said  divisions 
the  same  may  be  cognizable  or  pending,  may  be  heard  and  determined  by 
the  court  or  judge  and  all  findings,  orders,  judgments,  and  decrees  be 
made,  and  all  mesne  and  final  process  therein  be  tested,  sealed,  issued,  and 
renewed  in  either  of  said  divisions,  in  term  time,  vacation,  or  chambers. 
(2  U.  S.  Comp.  Stats.  1916,  §  lOTOf.) 

§  7.  [Change  of  venue — Continuance.]  That  nothing  in  this  Act  con- 
tained shall  be  construed  to  deprive  the  court  or  judge  of  the  power  to 
grant  a  change  of  venue  or  continuance  in  any  cause,  proceeding,  or  mat- 
ter whatsoever  according  to  law  and  the  requirements  of  justice.  (2  U.  S. 
Comp.  Stats.  1916,  §  lOTOg.) 

§  8.  [Time  of  taking  effect  of  Act — Inconsistent  Acts.]  That  this  Act 
shall  take  effect  on  the  day  following  its  passage,  but  it  shall  not  apply 
to  or  in  any  wise  affect  any  cause,  suit,  action,  bill,  petition,  matter,  libel, 
proceeding,  prosecution,  indictment,  complaint,  information,  stipulation, 
bail  bond,  or  recognizance  now  pending  in  said  court,  or  which  has  already 
been  instituted,  begun,  filed,  entered,  made,  served,  found,  or  taken,  but 
the  same  shall  depend,  be  entered,  returned,  continued,  prosecuted,  tried, 
heard,  and  determined  and  suitable  and  appropriate  orders,  judgment,  de- 
crees, and  executions,  mesne  and  final  and  all  other  process,  attachment, 
monitions,  stipulations,  bonds,  recognizances  therein,  shall  be  made,  signed, 
tested,  sealed,  issued,  renewed,  served,  executed,  entered,  and  returned,  the 
same  as  under  existing  law  and  as  if  this  Act  had  never  been  passed,  ex- 
cept for  the  purposes  mentioned  in  sections  five  and  six  of  this  Act.  All 
Acts  and  parts  of  Acts  inconsistent  with  this  Act  are  hereby  repealed. 
(2  U.  S.  Comp.  Stats.  1916,  §  1070h.) 

§  86  (Re-enacting  §  531,  Rev.  Stats.).  The  state  of  Maryland  shall 
constitute  one  judicial  district,  to  be  known  as  the  district  of  Maryland. 
Terms  of  the  district  court  shall  be  held  at  Baltimore  on  the  first  Tuesdays 
in  March,  June,  September,  and  December;  and  at  Cumberland  on  the 
second  Monday  in  May  and  the  last  Monday  in  September.  The  clerk 
of  the  court  shall  appoint  a  deputy  who  shall  reside  and  maintain  an 
office  at  Cumberland,  unless  the  clerk  shall  himself  reside  there ;  and-  the 
marshal  shall  also  appoint  a  deputy  who  shall  reside  and  maintain  an 


THE  JUDICIAL  CODB.  711 

office  at  Cumberland,  unless  he  shall  himself  reside  there.     (5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  569;  2  U.  S.  Gomp.  Stats,  1916,  §  1071.) 

§87  (Re-enacting  §531,  Rev.  Stats.).  The  state  of  Massachusetts 
shall  constitute  one  judicial  district,  to  be  known  as  the  district  of  Massa- 
chusetts. Terms  of  the  district  court  shall  be  held  at  Boston  on  the 
third  Tuesday  in  March,  the  fourth  Tuesday  in  June,  the  second  Tuesday 
in  September,  and  the  first  Tuesday  in  December;  and  at  Springfield,  on 
the  second  Tuesdays  in  May  and  December:  Provided,  That  suitable 
rooms  and  accommodations  for  holding  court  at  Springfield  shall  be  fur- 
nished free  of  expense  to  the  government  until  such  time  as  a  Federal 
building  shall  be  erected  there  for  that  purpose.  The  marshal  and  the 
clerk  for  said  district  shall  each  appoint  at  least  one  deputy,  to  reside 
in  Springfield  and  to  maintain  an  office  at  that  place.  (5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  570;  2  U.  S.  Comp.  Stats.  1916,  §  1072.) 

§88  (R*-enacting  §538,  Rev.  Stats.),  as  Amended  Act  July  9,  1912, 
c.  222.  The  state  of  Michigan  is  divided  into  two  judicial  districts,  to 
be  known  as  the  eastern  and  western  districts  of  Michigan.  The  eastern 
district  shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Alcona,  Alpena,  Arenac,  Bay, 
Cheboygan,  Clare,  Crawford,  Genesee,  Gladwin,  Gratiot,  Huron,  losco, 
Isabella,  Midland,  Montmorency,  Ogemaw,  Oscoda,  Otsego,  Presque  Isle, 
Roscommon,  Saginaw,  Shiawassee,  and  Tuscola,  which  shall  constitute 
the  northern  division;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Branch,  Calhoun,  Clinton,  Hillsdale,  Ingham, 
Jackson,  Lapeer,  Lenawee,  Livingston,  Macomb,  Monroe,  Oakland,  St. 
Clair,  Sanilac,  Washtenaw,  and  Wayne,  which  shall  constitute  the  southern 
division  of  said  district.  Terms  of  the  district  court  for  the  southern 
division  shall  be  held  at  Detroit  on  the  first  Tuesdays  in  March,  June 
and  November;  for  the  northern  division,  at  Bay  City  on  the  first  Tues- 
days in  May  and  October,  and  at  Port  Huron  in  the  discretion  of  the 
judge  of  said  court  and  at  such  times  as  he  shall  appoint  therefor. 
There  shall  also  be  held  a  special  or  adjourned  term  of  the  district  court 
at  Bay  City  for  the  hearing  of  admiralty  causes,  beginning  in  the  month 
of  February  in  each  year.  The  western  district  shall  include  the  ter- 
ritory embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Alger,  Baraga,  Chippewa,  Delta,  Dickinson,  Gogebic, 
Houg-hton,  Iron,  Keweenaw,  Luce,  Mackinac,  Marquette,  Menominee, 
Ontonagon,  and  Bchoolcraft,  which  shall  constitute  the  northern  division; 
also  the  territory  embraced  on  the  said  date  last  mentioned  in  the  coun- 
ties of  Allegan,  Antrim,  Barry,  Benzie,  Berrien,  Cass,  Charlevoix,  Eaton, 


712  APPENDIX. 

Emmet,  Grand  Traverse,  Ionia,  Kalamazoo,  Kalkaska,  Kent,  Lake,  Lee- 
lanau,  Manistee,  Mason,  Mecosta,  Missaukee,  Montcalm,  Muske^on, 
Newaygo,  Oceana,  Osceola,  Ottawa,  St.  Joseph,  Van  Buren,  and  Wexford, 
which  shall  constitute  the  southern  division  of  said  district.  Terms  of 
the  district  court  for  the  western  district  of  Michigan  for  the  southern 
division  shall  be  held  at  Grand  Rapids,  commencing  on  the  first  Tuesdays 
in  March,  June,  October,  and  December;  and  for  the  northern  division 
at  Marquette, -commencing  on  the  first  Tuesdays  in  April  and  September ; 
and  at  Sault  Sainte  Marie,  commencing  on  the  second  Tuesdays  in  Janu- 
ary and  July.  (Terms  for  Western  district  of  Southern  Division,  37  Stats. 
190,  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1093.)  All  issues  of  fact  shall  be  tried 
at  the  terms  in  the  division  where  such  suit  shall  be  commenced.  Actions 
in  rem  and  admiralty  may  be  brought  in  whichever  division  of  the  eastern 
district  service  can  be  had  upon  the  res.  -Nothing  herein  contained  shall 
prevent  the  district  court  of  the  western  division  from  regulating,  by  gen- 
eral rule,  the  venue  of  transitory  actions  either  at  law  or  in  equity,  or  from 
changing  the  same  for  cause.  The  clerk  of  the  court  for  the  western  district 
shall  reside  and  keep  his  office  at  Grand  Rapids,  and  shall  also  appoint  a 
deputy  clerk  for  said  court  held  at  Marquette,  who  shall  reside  and  keep 
his  office  at  that  place.  The  marshal  for  said  western  district  shall  keep  an 
office  and  a  deputy  marshal  at  Marquette.  The  clerk  of  the  court  for 
the  eastern  district  shall  keep  his  office  at  the  city  of  Detroit,  and  shall 
appoint  a  deputy  for  the  court  held  at  Bay  City,  who  shall  reside  and 
keep  his  office  at  that  place.  The  marshal  for  said  district  shall  keep 
an  office  and  a  deputy  marshal  at  Bay  City,  and  mileage  on  service  of 
process  in  said  northern  division  shall  be  computed  from  Bay  City. 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  570;  2  U.  S.  Comp.  Stats.  1916,  §  1073.) 

§89  (Re-enacting  §531,  Rev.  Stats.).  The  state  of  Minnesota  shall 
constitute  one  judicial  district,  to  be  known  as  the  district  of  Minnesota. 
It  is  divided  into  six  divisions,  to  be  known  as  the  first,  second,  third, 
fourth,  fifth,  and  sixth  divisions.  The  first  division  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Winona,  Wabasha,  Olmsted,  Dodge,  Steele,  Mower, 
Fillmore,  and  Houston.  The  second  division  shall  include  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Freeborn,  Fari- 
bault,  Martin,  Jackson,  Nobles,  Rock,  Pipestone,  Murray,  Cottonwood, 
Watonwan,  Blue  Earth,  Waseca,  Lesueur,  Nicollet,  Brown,  Redwood, 
Lyon,  Lincoln,  Yellow  Medicine,  Sibley,  and  Lac  qui  Parle.  The  third 
division  shall  include  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Chisago,  Washing-ton,  Ramsey,  Dakota,  Goodhue,  Rice, 
and  Scott.  The  fourth  division  shall  include  the  territory  embraced  on 


THE  JUDICIAL  CODE.  713 

the  date  last  mentioned  in  the  counties  of  Hennepin,  Wright,  Meeker, 
Kandiyohi,  Swift,  Chippewa,  Renville,  McLeod,  Carver,  Anoka,  Sher- 
burne,  and  Isanti.  The  fifth  division  shall  include  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Cook,  Lake,  Saint  Louis, 
Itasca,  Koochiching,  Cass,  Crow  Wing,  Aitkin,  Carlton,  Pine,  Kanabec, 
Mille  Lacs,  Morrison,  and  Benton.  The  sixth  division  shall  include  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Stearns, 
Pope,  Stevens,  Bigstone,  Traverse,  Grant,  Douglas,  Todd,  Ottertail, 
Roseau,  Wilkin,  Clay,  Becker,  Wadena,  Norman,  Polk,  Red  Lake,  Mar- 
shall, Kittson,  Beltrami,  Clearwater,  Mahnomen,  and  Hubbard.  Terms 
of  the  district  court  for  the  first  division  shall  be  held  at  Winona  on  the 
third  Tuesdays  in  May  and  November;  for  the  second  division,  at  Man- 
kato  on  the  fourth  Tuesdays  in  April  and  October;  for  the  third  division, 
at  Saint  Paul  on  the  first  Tuesdays  in  June  and  December;  for  the  fourth 
division,  at  Minneapolis  on  the  first  Tuesdays  in  April  and  October;  for 
the  fifth  division,  at  Duluth  on  the  second  Tuesdays  in  January  and 
July;  and  for  the  sixth  division,  at  Fergus  Falls  on  the  first  Tuesday  in 
May  and  second  Tuesday  in  November.  The  clerk  of  the  court  shall 
appoint  a  deputy  clerk  at  each  place  where  the  court  is  now  required 
to  be  held  at  which  the  clerk  shall  not  himself  reside,  who  shall  keep  his 
office  and  reside  at  the  place  appointed  for  the  holding  of  said  court. 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  571;  2  U.  S.  Comp.  Stats.  1916,  §  1075.) 

§  90  (Re-enacting  Act  June  15,  1882,  c.  218),  as  Amended  Act  May 
27,  1912,  c.  136.  The  state  of  Mississippi  is  divided  into  two  judicial 
districts,  to  be  known  as  the  northern  and  southern  districts  of  Mississippi. 
The  northern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Alcorn,  Attala, 
Chickasaw,  Choctaw,  Clay,  Itawamba,  Lee,  Lowndes,  Monroe,  Oktibbeha, 
Pontotoc,  Prentiss,  Tishomingo,  and  Winston,  which  shall  constitute  the 
eastern  division  of  said  district;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Benton,  Calhoun,  Carroll,  De  Soto, 
Grenada,  Lafayette,  Marshall,  Montgomery,  Panola,  Tate,  Tippah,  Union, 
Webster,  and  Yalobusha,  which  shall  constitute  the  western  division  of 
said  district.  Also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Bolivar,  Coahoma,  Leflore,  Quitman,  Sunflower,  Talla- 
hatchie,  and  Tunica,  which  shall  constitute  the  Delta  division  of  said 
district.  The  terms  of  the  district  court  for  the  eastern  division  shall 
be  held  at  Aberdeen  on  the  first  Mondays  in  April  and  October;  and 
for  the  western  division,  at  Oxford  on  the  first  Mondays  in  June  and 
December,  and  for  the  Delta  division  at  Clarksdale  on  the  fourth  Mon- 
days in  January  and  July;  Provided,  That  suitable  rooms  and  accom- 


714  APPENDIX. 

modations  for  holding  court  at  Clarksdale  are  furnished  free  of  ex- 
pense to  the  United  States.  The  southern  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Adams,  Amite,  Copiah,  Covington,  Franklin,  Hinds, 
Holmes,  Jefferson,  Jefferson  Davis,  Lawrence,  Lincoln,  Madison,  Pike, 
Rankin,  Simpson,  Smith,  Scott,  Wilkinson,  and  Yazoo,  which  shall  con- 
stitute the  Jackson  division;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Claiborne,  Issaquena,  Sharkey,  Warren, 
and  Washington,  which  shall  constitute  the  western  division;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of  Clarke, 
Jones,  Jasper,  Kemper,  Lauderdale,  Leake,  Neshoba,  Newton,  Noxubee, 
and  Wayne,  which  shall  constitute  the  eastern  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Forrest,  Greene, 
Hancock,  Harrison,  Jackson,  Lamar,  Marion,  Perry,  and  Pearl  River, 
which  shall  constitute  the  southern  division  of  said  district.  Terms  of 
the  district  court  for  the  Jackson  division  shall  be  held  at  Jackson  on  the 
first  Mondays  in  May  and  November;  for  the  western  division,  at  Vicks- 
burg  on  the  first  Mondays  in  January  and  July;  for  the  eastern  division, 
at  Meridian  on  the  second  Mondays  in  March  and  September;  and  for 
the  southern  division,  at  Biloxi  on  the  third  Mondays  in  February  and 
August.  The  clerk  of  the  court  for  each  district  shall  maintain  an  office 
in  charge  of  himself  or  a  deputy  at  each  place  in  his  district  at  which 
•fcourt  is  now  required  to  be  held,  at  which  he  shall  not  himself  reside, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court.  The  marshal  for  each  of  said  districts  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  each  place  of  holding  court 
in  his  district.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  572;  2  U.  S.  Comp.  Stats. 
1916,  §  1076.) 

§  91  (Re-enacting  Act  of  Feb.  28,  1887,  c.  271,  as  Amended  Act  Dec.  22, 
1911,  c.  8).  The  state  of  Missouri  is  divided  into  two  judicial  districts,  to 
be  known  as  the  eastern  and  western  districts  of  Missouri.  The  eastern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  city  of  Saint  Louis  and  the  counties  of  Audrain, 
Crawford,  Dent,  Franklin,  Gasconade,  Iron,  Jefferson,  Lincoln,  Maries, 
Montgomery,  Phelps,  Saint  Charles,  Saint  Francois,  Sainte  Genevieve, 
Saint  Louis,  Warren,  and  Washington,  which  shall  constitute  the  eastern 
division  of  said  district;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Adair,  Chariton,  Clark,  Knox,  Lewis,  Linn,  Macon, 
Marion,  Monroe,  Pike,  Rails,  Randolph,  Schuyler,  Scotland,  and  Shelby, 
which  shall  constitute  the  northern  division  of  said  district;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of  Bellinger,  But- 


THE   JUDICIAL   CODE.  715 

ler,  Cape  Girardeau,  Carter,  Dunklin,  Madison,  Mississippi,  New  Madrid, 
Pemiscot,  Perry,  Reynolds,  Ripley,  Scott,  Shannon,  Stoddard,  and  Wayne, 
which  shall  constitute  the  southeastern  division  of  said  district.  Terms 
of  the  district  court  for  the  eastern  division  shall  be  held  at  Saint  Louis 
on  the  third  Mondays  in  March  and  September,  and  at  Rolla  on  the  second 
Mondays  in  January  and  June:  Provided,  That  suitable  rooms  and 
accommodations  for  holding  court  at  Rolla  are  furnished  free  of  expense 
to  the  United  States;  for  the  northern  division,  at  Hannibal  on  the  fourth 
Monday  in  May  and  the  first  Monday  in  December;  and  for  the  south- 
eastern division,  at  Cape  Girardeau  on  the  second  Mondays  in  April  and 
October.  The  western  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Bates, 
Caldwell,  Carroll,  Cass,  Clay,  Grundy,  Henry,  Jackson,  Johnson,  Lafayette, 
Livingston,  Mercer,  Putnam,  Ray,  Saint  Clair,  Saline,  and  Sullivan,  which 
shall  constitute  the  western  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Barton,  Barry,  Jasper,  Lawrence, 
McDonald,  Newton,  Stone,  and  Vernon,  which  shall  constitute  the  south- 
western division ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  at  Andrew,  Atchison,  Buchanan,  Clinton,  Daviess,  Dekalb, 
Gentry,  Holt,  Harrison,  Nodaway,  Platte,  and  Worth,  which  shall  con- 
stitute the  Saint  Joseph  division ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Benton,  Boone,  Callaway,  Cooper, 
Camden,  Cole,  Hickory,  Howard,  Miller,  Moniteau,  Morgan,  Osage,  and* 
Pettis,  which  shall  constitute  the  central  division;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Christian/  Cedar, 
Dade,  Dallas,  Douglas,  Greene,  Howell,  Laclede,  Oregon,  Ozard,  Polk, 
Pulaski,  Taney,  Texas,  Webster,  and  Wright,  which  shall  constitute  the 
southern  division.  Terms  of  the  district  court  for  the  western  division 
shall  be  held  at  Kansas  City  on  the  fourth  Monday  in  April  and  the  first 
Monday  in  November,  and  at  Chillicothe  on  the  fourth  Monday  in  May 
and  the  first  Monday  in  December:  Provided,  That  suitable  rooms  and 
accommodations  for  holding  court  at  Chillicothe  are  furnished  free  of 
expense  to  the  United  States;  for  the  southwestern  division,  at  Joplin  on 
the  second  Mondays  in  June  and  January;  for  the  Saint  Joseph  division, 
at  Saint  Joseph  on  the  first  Monday  in  March  and  third  Monday  in  Sep- 
tember; for  the  central  division,  at  Jefferson  City  on  the  third  Mondays 
in  March  and  October;  and  for  the  southern  division,  at  Springfield  on 
the  first  Mondays  in  April  and  October.  The  clerk  of  the  court  at  Saint 
Louis  in  the  eastern  district  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  Saint  Louis  and  Hannibal,  and  at  such  other  places  of 
holding  court  in  said  district  as  may  be  deemed  necessary  to  the  judge, 


716  APPENDIX. 

which  shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court.  The  clerk  of  the  court  for  the  western  district  shall  main- 
tain an  office  in  charge  of  himself  or  a  deputy  at  Kansas  City,  at  Jeffer- 
son City,  at  Saint  Joseph,  at  Chillicothe,  at  Joplin,  and  at  Springfield, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court.  The  marshal  for  each  district  shall  also  maintain  an  office 
in  charge  of  himself  or  a  deputy  at  each  place  at  which  court  is  now  held 
in  his  district.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  574;  2  U.  S.  Comp.  Stats. 
1916,  §  1077.) 

§92  (Re-enacting  25  Stats.  628).  The  state  of  Montana  shall  con- 
stitute one  judicial  district  to  be  known  as  the  district  of  Montana.  Terms 
of  the  district  court  shall  be  held  at  Helena  on  the  first  Mondays  in  April 
and  November;  at  Butte  on  the  first  Tuesdays  in  February  and  Septem- 
ber; at  Great  Falls  on  the  first  Mondays  in  May  and  October;  at  Missoula 
on  the  first  Mondays  in  January  and  June;  and  at  Billings  on  the  first 
Mondays  in  March  and  August.  Causes,  civil  and  criminal,  may  be 
transferred  by  the  court  or  judge  thereof  from  Helena  to  Butte  or  from 
Butte  to  Helena,  or  from  Helena  or  Butte  to  Great  Falls,  or  from  Great 
Falls  to  Helena  or  Butte,  in  said  district,  when  the  convenience  of  the 
parties  or  the  ends  of  justice  would  be  promoted  by  the  transfer;  and  any 
interlocutory  order  may  be  made  by  the  court  or  judge  thereof  in  either 
place.  (5  Fed.  Stats.  Ann.,  2d  ed.,  575;  2  U.  S.  Comp.  Stats.  1916, 
§  1078.) 

§93  ^  (Re-enacting  §531,  Rev.  Stats.).  The  state  of  Nebraska  shall 
constitute  one  judicial  district,  to  be  known  as  the  district  of  Nebraska. 
Said  district  is  divided  into  eight  divisions.  The  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Douglas,  Sarpy,  Washington,  Dodge,  Colfax,  Platte,  Nance,  Boone, 
Wheeler,  Burt,  Thurston,  Dakota,  Cuming,  Cedar,  and  Dixon,  shall  con- 
stitute the  Omaha  division;  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Madison,  Antelope,  Knox,  Pierce,  Stanton,  Wayne, 
Holt,  Boyd,  Rock,  Brown,  and  Keya  Paha,  shall  constitute  the  Norfolk 
division;  the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Cherry,  Sheridan,  Dawes,  Box  Butte,  and  Sioux,  shall  constitute 
the  Chadron  division;  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Hall,  Merrick,  Howard,  Greeley,  Garfield,  Valley,  Sher- 
man, Buffalo,  Custer,  Loup,  Blaine,  Thomas,  Hooker,  and  Grant,  shall 
constitute  the  Grand  Island  division ;  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Lincoln,  Dawson,  Logan,  McPherson, 
Keith,  Deuel,  Garden,  Morrill,  Cheyenne,  Kimball,  Banner,  and  Scott's 


THE  JUDICIAL  CODE.  717 

Bluff,  shall  constitute  the  North  Platte  division;  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Cass,  Otoe,  Johnson,  Nemalia, 
Pawnee,  Richardson,  Gage,  Lancaster,  Saunders,  Butler,  Seward,  Saline, 
Jefferson,  Thayer,  Fillmore,  York,  Polk,  and  Hamilton,  shall  constitute 
the  Lincoln  division ;  the  territory  embraced  on  the.  date  last  mentioned 
in  the  counties  of  Clay,  Nuckolls,  Webster,  Adams,  Kearney,  Franklin, 
Harlan,  and  Phelps,  shall  constitute  the  Hastings  division ;  and  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of  Gosper, 
Furnas,  Red  Willow,  Frontier,  Hayes,  Hitchcock,  Dundy,  Chase,  and 
Perkins,  shall  constitute  the  McCook  division.  Terms  of  the  district  court 
for  the  Omaha  division  shall  be  held  at  Omaha  on  the  first  Monday  in 
April  and  the  fourth  Monday  in  September;  for  the  Norfolk  division, 
at  Norfolk  on  the  third  Monday  in  September;  for  the  Chadron  division, 
at  Chadron  on  the  second  Monday  in  September;  for  the  Grand  Island 
division,  at  Grand  Island  on  the  second  Monday  in  January,  for  the 
North  Platte  division,  at  North  Platte  on  the  second  Monday  in  June;  for 
the  Lincoln  division,  at  Lincoln  on  the  second  Monday  in  May  and  the 
first  Monday  in  October;  for  the  Hastings  division,  at  Hastings  on  the 
second  Monday  in  March ;  and  for  the  McCook  division,  at  McCook  on  the 
first  Monday  in  March :  Provided,  That  where  provision  is  made  herein 
for  holding  court  at  places  where  there  are  no  Federal  buildings,  a  suit- 
able room  Jn  which  to  hold  court,  together  with  light  and  heat,  shall  be 
provided  by  the  city  or  county  where  such  court  is  held,  without  any 
expense  to  the  United  States.  The  clerk  of  the  court  shall  appoint  a 
deputy  for  each  division  of  the  district  in  which  he  does  not  himself 
reside,  who  shall  keep  his  office  and  reside  at  the  place  of  holding  court 
in  the  division  for  which  he  is  appointed.  (5  Fed.  Stats.  Ann.,  2d  ed., 
p.  576;  2  U.  S.  Comp.  Stats.  1916,  §  1079.) 

§94  (Re-enacting  §531,  Rev.  Stats.).  The  state  of  Nevada  shall  con- 
stitute one  judicial  district,  to  be  known  as  the  district  of  Nevada.  Terms 
of  the  district  court  shall  be  held  at  Carson  City  on  the  first  Mondays  in 
February,  May,  and  October.  (5  Fed.  Stats.  Ann.,  2d  ed.,  .p.  577;  2 
U.  S.  Comp.  Stats.  1916,  §  1080.) 

§  95  (Re-enacting  §  531,  Rev.  Stats.),  as  Amended  Act  August  23,  1912, 
c.  344.  "The  state  of  New  Hampshire  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  New  Hampshire.  Terms  of  the  dis- 
trict court  shall  be  held  at  Portsmouth  on  the  last  Tuesday  in  October; 
at  Concord  on  the  last  Tuesday  in  April  and  second  Tuesday  in  December ; 
and  at  Littleton  on  the  third  Tuesday  in  September.  (5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  577;  2  U.  S.  Comp.  Stats.  1916,  §  1081.) 


718  APPENDIX. 

§96  (Re-enacting  §531,  Rev.  Stats.),  as  Amended  Act  Feb.  14,  1913, 
c.  53.  The  state  of  New  Jersey  shall  constitute  one  judicial  district,  to 
be  known  as  the  district  of  New  Jersey.  Terms  of  the  district  court  shall 
be  held  at  Newark  on  the  first  Tuesday  in  April  and  the  first  Tuesday  in 
November;  and  at  Trenton  on  the  third  Tuesday  in  January  and  the 
second  Tuesday  in  September  of  each  year.  The  clerk  of  the  court  for 
the  district  of  New  Jersey  shall  maintain  an  office,  in  charge  of  himself 
or  a  deputy,  at  Newark  and  at  Trenton,  each  of  which  offices  shall  be  kept 
open  at  all  times  for  the  transaction  of  the  business  of  the  court;  and  the 
marshal  shall  also  maintain  an  office,  in  charge  of  himself  or  a  deputy, 
at  Newark  and  at  Trenton,  each  of  which  offices  shall  be  kept  open  at  all 
times  for  the  transaction  of  the  business  of  the  court.  (5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  577;  2  U.  S.  Comp.  Stats.  1916,  §  1082.) 

§  1,  Act  of  April  11,  1916.  (New  Jersey  judicial  district — Additional 
judge — Residence,  etc.)  That  the  President  of  the  United  States  be,  and 
he  hereby  is,  authorized  and  directed,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  appoint  an  additional  judge  of  the  district  court  of 
the  United  States  for  the  district  of  New  Jersey,  who  shall  reside  in  said 
district,  and  whose  term  of  office,  compensation,  duties,  and  powers  shall 
be  the  same  as  now  provided  by  law  for  the  judge  of  said  district. 
(Pamphlet  Supp.  Fed.  Stats.  Ann.,  title  "Judiciary,"  No.  7,  p.  13.) 

§  2.     That  this  Act  shall  take  effect  immediately.    , 

§13,  Act  June  20,  1910,  c.  310.  That  the  state,  when  admitted  as 
aforesaid,  shall  constitute  one  judicial  district,  and  the  circuit  and  dis- 
trict courts  of  said  district  shall  be  held  at  the  capital  of  said  state,  and 
the  said  district  shall,  for  judicial  purposes,  be  attached  to  the  eighth 
judicial  circuit.  There  shall  be  appointed  for  said  district  one  district 
judge,  one  United  States  attorney,  and  one  United  States  marshal.  The 
judge  of  said  district  shall  receive  a  yearly  salary  the  same  as  other  similar 
judges  of  the  United  States,  payable  as  provided  for  by  law,  and  shall 
reside  in  the  district  to  which  he  is  appointed.  There  shall  be  appointed 
clerks  of  said  courts,  who  shall  keep  their  offices  at  the  capital  of  said 
state.  The  regular  terms  of  said  courts  shall  be  held  on  the  first  Monday 
in  April  and  the  first  Monday  in  October  of  each  year.  The  circuit  and 
district  courts  for  said  district,  and  the  judges  thereof,  respectively,  shall 
possess  the  same  powers  and  jurisdiction  and  perform  the  same  duties 
required  to  be  performed  by  the  other  circuit  and  district  courts  and 
judges  of  the  United  States,  and  shall  be  governed  by  the  same  laws 
and  regulations.  The  marshal,  district  attorney,  and  the  clerks  of  the 


THE  JUDICIAL  CODE.  719 

circuit  and  district  courts  of  said  district,  and  all  other  officers  and  persons 
performing  duties  in  the  administration  of  justice  therein,  shall  severally 
possess  the  powers  and  perform  the  duties  lawfully  possessed  and  required 
to  be  performed  by  similar  officers  in  other  districts  of  the  United  States, 
and  shall,  for  the  services  they  may  perform,  receive  the  fees  and  com- 
pensation now  allowed  by  law  to  officers  performing  similar  services  for 
the  United  States  in  the  Territory  of  New  Mexico.  (36  Stats.  565;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  1094;  2  U.  S.  Comp.  Stats.  1916,  §  1083.) 

§  97  (Drawn  from  §§  597,  599,  Rev.  Stats.).  The  state  of  New  York  is 
divided  into  four  judicial  districts,  to  be  known  as  .the  northern,  eastern, 
southern,  and  western  districts  of  New  York.  The  northern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Albany,  Broome,  Cayuga,  Chenango,  Clinton, 
Cortland,  Delaware,  Essex,  Franklin,  Fulton,  Hamilton,  Herkimer,  Jef- 
ferson, Lewis,  Madison,  Montgomery,  Oneida,  Onondaga,  Oswego,  Otsego, 
Rensselaer,  Saint  Lawrence,  Saratoga,  Schenectady,  Schoharie,  Tioga, 
Tompkins,  "Warren,  and  "Washington,  with  the  waters  thereof.  Terms  of 
the  district  court  for  said  district  shall  be  held  at  Albany  on  the  second 
Tuesday  in  February;  at  Utica  on  the  first  Tuesday  in  December;  at 
Binghamton  on  the  second  Tuesday  in  June;  at  Auburn  on  the  first  Tues- 
day in  October;  at  Syracuse  on  the  first  Tuesday  in  April;  and,  in  the 
discretion  of  the  judge  of  the  court,  one  term  annually  at  such  time  and 
place  within  the  counties  of  Saratoga,  Onondaga,  Saint  Lawrence,  Clinton, 
Jefferson,  Oswego,  and  Franklin,  as  he  may  from  time  to  time  appoint. 
Such  appointment  shall  be  made  by  notice  of  at  least  twenty  days  pub- 
lished in  a  newspaper  published  at  the  place  where  said  court  is  to  be 
held.  The  eastern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Richmond, 
Kings,  Queens,  Nassau,  and  Suffolk,  with  the  waters  thereof.  Terms  of 
the  district  court  for  said  district  shall  be  held  at  Brooklyn  on  the  first 
Wednesday  in  every  month.  The  southern  district  shall  include  the  ter- 
ritory embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Columbia,  Dutchess,  Greene,  New  York,  Orange,  Putnam, 
Rockland,  Sullivan,  Ulster,  and  Westchester,  with  the  waters  thereof. 
Terms  of  the  district  court  for  said  district  shall  be  held  at  New  York 
city  on  the  first  Tuesday  in  each  month.  The  district  courts  of  the  south- 
ern and  eastern  districts  shall  have  concurrent  jurisdiction  over  the  waters 
within  the  counties  of  New  York,  Kings,  Queens,  Nassau,  Richmond,  and 
Suffolk,  and  over  all  seizures  made  and  all  matters  done  in  such  waters; 
all  processes  or  orders  issued  within  either  of  said  courts  or  by  any  judge 
thereof  shall  run  and  be  executed  in  any  part  of  said  waters.  The  western 


720  APPENDIX. 

district  shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Allegany,  Cattaraugus,  Chau- 
tauqua,  Chemung,  Erie,  Genesee,  Livingston,  Monroe,  Niagara,  Ontario, 
Orleans,  Schuyler,  Seneca,  Steuben,  Wayne,  Wyoming,  and  Yates,  with 
the  waters  thereof.  Terms  of  the  district  court  for  said  district  shall 
be  held  at  Elmira  on  the  second  Tuesday  in  January;  at  Buffalo  on  the 
second  Tuesdays  in  March  and  November;  at  Rochester  on  the  second 
Tuesday  in  May;  at  Jamestown  on  the  second  Tuesday  in  July;  at  Lock- 
port  on  the  second  Tuesday  in  October;  and  at  Canandaigua  on  the 
second  Tuesday  in  September.  The  regular  sessions  of  the  district  court 
for  the  western  district  for  the  hearing  of  motions  and  for  proceedings 
in  bankruptcy  and  the  trial  of  causes  in  admiralty,  shall  be  held  at  Buffalo 
at  least  two  weeks  in  each  month  of  the  year,  except  August,  unless  the 
business  is  sooner  disposed  of.  The  times  for  holding  the  same  and  such 
other  special  sessions  as  the  court  shall  deem  necessary  shall  be  fixed 
by  the  rules  of  the  court.  All  process  in  admiralty  causes  and  proceed- 
ings shall  be  made  returnable  at  Buffalo.  The  judge  of  any  district  in 
the  state  of  New  York  may  perform  the  duties  of  the  judge  of  any  other 
district  in  such  state  upon  the  request  of  any  resident  judge  entered  in 
the  minutes  of  his  court;  and  in  such  cases  such  judge  shall  have  the  same 
powers  as  are  vested  in  the  resident  judge.  (5  Fed.  Stats.  Ann.,  2d  ed., 
p.  578;  2  U.  S.  Comp.  Stats.  1916,  §  1084.) 

§  98,  as  Amended  Act  Oct.  7,  1914,  c.  318.  The  State  of  North  Caro- 
lina is  divided  into  two  districts,  to  be  known  as  the  eastern  and  western 
districts  of  North  Carolina.  The  eastern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Beaufort,  Bertie,  Bladen,  Brunswick,  Camden,  Chatham,  Cum 
berland,  Currituck,  Craven,  Columbus,  Chowan,  Carteret,  Dare,  Daplin, 
Durham,  Edgecomb,  Franklin,  Gates,  Granville,  Greene,  Halifax,  Harnett, 
Hertford,  Hyde,  Johnston,  Jones,  Lenoir,  Lee,  Martin,  Moore,  Nash,  New 
Hanover,  Northampton,  Onslow,  Pamlico,  Pasquotank,  Fender,  Perqui- 
mans,  Person,  Pitt,  Robeson,  Richmond,  Sampson,  Scotland,  Tyrrell, 
Vance,  Wake,  Warren,  Washington,  Wayne,  and  Wilson.  Terms  of  the 
district  court  for  the  eastern  district  shall  be  held  at  Laurinburg  on  the 
last  Mondays  in  March  and  September;  at  Wilson  on  the  first  Mondays 
in  April  and  October;  at  Elizabeth  City  on  the  second  Mondays  in  April 
and  October;  at  Washington  on  the  third  Mondays  in  April  and  October; 
at  Newbern  on  the  fourth  Mondays  in  April  and  October;  at  Wilmington 
on  the  second  Monday  after  the  fourth  Mondaj's  in  April  and  October; 
and  at  Raleigh  on  the  fourth  Monday  after  the  fourth  Mondays  in  April 


THE  JUDICIAL  OODB.  721 

and  October:  Provided,  that  the  city  of  Washington,  the  city  of  Laurin- 
burg,  and  the  city  of  Wilson  shall  each  provide  and  furnish  at  its  own 
expense  a  suitable  and  convenient  place  for  holding  the  district  court 
at  Washington,  at  Laurinburg,  and  at  Wilson  until  a  courthouse  shall  be 
constructed  by  the  United  States.  The  clerk  of  the  court  for  the  eastern 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
Raleigh,  at  Wilmington,  at  Newbern,  at  Elizabeth  City,  at  Washington, 
at  Laurinburg,  and  at  Wilson,  which  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  the  court. 

The  western  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Alamance,  Alex- 
ander, Ashe,  Alleghany,  Anson,  Buncombe,  Burke,  Caswell,  Cabarrus, 
Catawba,  Cleveland,  Caldwell,  Clay,  Cherokee,  Davidson,  Davie,  Forsyth, 
Guilford,  Gaston,  Graham,  Henderson,  Haywood,  Iredell,  Jackson,  Lincoln, 
Montgomery,  Mecklenburg,  Mitchell,  McDowell,  Madison,  Macon,  Orange, 
Polk,  Randolph,  Rockingham,  Rowan,  Rutherford,  Stanly,  Stokes,  Surry, 
Swain,  Transylvania,  Union,  Wilkes,  Watauga,  Yadkin,  and  Yancey. 
Terms  of  the  district  court  for  the  western  district  shall  be  held  in  Greens- 
boro on  the  first  Mondays  in  June  and  December;  at  Statesville  on  the 
third  Mondays  in  April  and  October;  at  Salisbury  on  the  fourth  Mondays 
in  April  and  October;  at  Asheville  on  the  first  Mondays  in  May  and 
November;  at  Charlotte  on  the  first  Mondays  in  April  and  October;  and 
at  Wilkesboro  on  the  fourth  Mondays  in  May  and  November.  The  clerk 
of  the  court  for  the  western  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Greensboro,  at  Asheville,  at  Statesville,  and  at 
Wilkesboro,  which  shall  be  kept  open  at  all  times  for  the  transaction  of 
the  business  of  the  court.  (38  Stats.  728.) 

Act  of  April  27,  1916.  (North  Carolina  eastern  judicial  district — 
Additional  terms.)  That  two  additional  terms  of  the  district  court,  for 
the  trial  of  civil  cases,  for  the  eastern  district  of  North  Carolina  shall 
be  held  at  Raleigh,  North  Carolina,  on  the  first  Monday  in  March  and 
the  first  Monday  in  September.  (Pamphlet  Supp.  Fed.  Stats.  Ann., 
title,  "Judiciary,"  No.  7,  p.  13.) 

§  99,  as  Amended  Act  of  July  17,  1916,  c.  248.  That  the  State  of 
North  Dakota  shall  constitute  one  judicial  district,  to  be  known  as  the 
district  of  North  Dakota.  The  territory  embraced  on  the  first  day  of 
January,  nineteen  hundred  and  sixteen,  in  the  counties  of  Burleigh,  Logan, 
Mclntosh,  Emmons,  Kidder,  McLean,  Adams,  Bowman,  Dunn,  Hettinger, 
Morton,  Stark,  Golden  Valley,  Slope,  Sioux,  Oliver,  Mercer,  Billings,  and 
McKenzie  shall  constitute  the  southwestern  division  of  said  district;  and 

Manual — 46 


722  APPENDIX. 

the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Cass, 
Richland,  Barnes,  Sargent,  Ransom,  and  Steele  shall  constitute  the  south- 
eastern division;  and  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Grand  Forks,  Traill,  Walsh,  Pembina,  Cavalier,  and  Nel- 
son shall  constitute  the  northeastern  division ;  and  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Ramsey,  Benson,  Towner,  Rolette, 
Bottineau,  Pierce,  and  McHenry  shall  constitute  the  northwestern  division ; 
and  the  territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Ward,  Williams,  Divide,  Montrail,  Burke,  and  Renville  shall  constitute 
the  western  division;  and  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Griggs,  Foster,  Eddy,  Wells,  Sheridan,  Stutsman, 
Lamoure,  and  Dickey  shall '  constitute  the  central  division.  The  several 
Indian  reservations  and  parts  thereof  within  said  State  shall  constitute 
a  part  of  the  several  divisions  within  which  they  are  respectively  situated. 
Terms  of  the  district  court  for  the  southwestern  division  shall  be  held 
at  Bismarck  on  the  first  Tuesday  in  March;  for  the  southeastern  division, 
at  Fargo,  on  the  third  Tuesday  in  May;  for  the  northeastern  division, 
at  Grand  Forks$  on  the  second  Tuesday  in  November;  for  the  northwestern 
division,  at  Devils  Lake  on  the  first  Tuesday  in  July;  for  the  western 
division,  at  Minot  on  the  second  Tuesday  in  October;  and  for  the  central 
division,  at  Jamestown  on  the  second  Tuesday  in  April.  The  clerk  of  the 
court  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  each 
place  at  which  court  is  held  in  his  district :  Provided,  That  the  Government 
of  the  United  States  shall  incur  no  expense  for  rent,  light,  heat,  water, 
or  janitor  service  for  the  building  in  which  court  shall  be  held  until  such 
time  as  the  Government  may  erect  its  own  court  room."  (Fed.  Stats. 
Ann.,  2d  ed.,  1918  Supp.,  title,  "Judiciary,"  Painph.  Supp.  No.  8,  October, 
1916,  p.  129;  2  U.  S.  Comp.  Stats.  1916,  §  1086,  p.  1258.) 

§  100,  as  Amended  Act  of  March  4,  1915,  c.  159.  The  State  of  Ohio 
is  divided  into  two  judicial  districts,  to  be  known  as  the  northern  and 
southern  districts  of  Ohio.  The  northern  district  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Ashland,  Ashtabula,  Cuyahoga,  Carroll,  Columbiana,  Craw- 
ford, Geauga,  Holmes,  Lake,  Lorain,  Medina,  Mahoning,  Portage,  Rich- 
land,  Summit,  Stark,  Tuscarawas,  Trumbull  and  Wayne,  which  shall  con- 
stitute the  eastern  division;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Auglaize,  Allen,  Defiance,  Erie,  Fulton, 
Henry,  Hancock,  Hardin,  Huron,  Lacas,  Mercer,  Marion,  Ottawa,  Pauld- 
ing,  Putnam,  Seneca,  Sandusky,  Van  Wert,  Williams,  Wood,  and  Wyan- 
dot,  which  shall  constitute  the  western  division  of  said  district.  Terms 


THE  JUDICIAL  CODE.  723 

of  the  district  court  for  the  eastern  division  shall  be  held  at  Cleveland  on 
the  first  Tuesdays  in  February,  April,  and  October,  and  at  Youngstown 
on  the  first  Tuesday  after  the  first  Monday  in  March;  and  for  the  western 
division,  at  Toledo  on  the  last  Tuesdays  in  April  and  October.  Grand 
and  petit  jurors  summoned  for  service  at  a  term  of  court  to  be  held  at 
Cleveland  may,  if  in  the  opinion  of  the  court  the  public  convenience  so 
requires,  be  directed  to  serve  also  at  the  term  then  being  held  or  author- 
ized to  be  held  at  Youngstown.  Crimes  and  offenses  committed  in  the 
eastern  division  shall  be  cognizable  at  the  terms  held  at  Cleveland  or  at 
Youngstown,  as  the  court  may  direct.  Any  suit  brought  in  the  eastern 
division  may,  in  the  discretion  of  the  court,  be  tried  at  the  term  held  at 
Youngstown.  The  southern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Adams,  Brown,  Butler,  Champaign,  Clark,  Clermont,  Clinton,  Darke, 
Green,  Hamilton,  Highland,  Lawrence,  Miami,  Montgomery,  Preble,  Scioto, 
Shelby,  and  Warren,  which  shall  constitute  the  western  division;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Athens, 
Belmont,  Coshocton,  Delaware,  Fairfield,  Fayette,  Franklin,  Gallia,  Guern- 
sey, Harrison,  Hocking,  Jackson,  Jefferson,  Knox,  Licking,  Logan,  Madi- 
son, Meigs,  Monroe,  Morgan,  Morrow,  Muskingum,  Noble,  Perry,  Pickaway, 
Pike,  Ross,  Union,  Vinton,  and  Washington,  which  shall  constitute  the 
eastern  division  of  said  district.  Terms  of  the  district  court  for  the 
western  division  shall  be  held  at  Cincinnati  on  the  first  Tuesdays  in  Feb- 
ruary, April,  and  October;  and  for  the  eastern  division  at  Columbus  on 
the  first  Tuesdays  in  June  and  December,  and  at  Steubenville  on  the  first 
Tuesdays  of  March  and  September.  Grand  and  petit  jurors  summoned 
for  service  at  a  term  of  court  being  held  at  Columbus  may,  if  in  the 
opinion  of  the  court  the  public  convenience  so  requires,  be  directed  to 
serve  also  at  the  term  being  held  or  authorized  to  be  held  at  Steubenville. 
Crimes  and  offenses  committed  in  the  eastern  division  shall  be  cognizable  at 
the  terms  held  at  Columbus,  or  at  Steubenville,  as  the  court  may  direct. 
Any  suit  brought  in  the  eastern  division  may,  in  the  discretion  of  the 
court,  be  tried  at  the  term  held  at  Steubenville:  Provided,  That  suitable 
rooms  and  accommodations  for  holding  court  at  Steubenville  shall  be  fur- 
nished free  of  expense  to  the  Government  until  the  completion  of  the 
Federal  building;  And  provided  further,  That  terms  of  the  district  court 
for  the  southern  district  shall  be  held  at  Dayton  on  the  first  Mondays  in 
May  and  November.  Prosecutions  for  crimes  and  offenses  committed  in 
any  part  q£  said  district  shall  also  be  cognizable  at  the  terms  held  at 
Dayton.  All  suits  which  may  be  brought  within  the  southern  district,  or 
either  division  thereof,  may  be  instituted,  tried,  and  determined  at  the 


724  APPENDIX. 

terms   held  at   Dayton.     (38   Stats.   1187;   2  U.   S.   Comp.   Stats.   1916, 
§  1087.) 

§  101,  as  Amended  Act  Feb.  20,  1917,  c.  102.  The  State  of  Oklahoma 
is  divided  into  two  judicial  districts,  to  be  known  as  the  eastern  and  west- 
ern districts  of  Oklahoma.  The  eastern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  sixteen,  in  the 
counties  of  Adair,  Atoka,  Bryant,  Craig,  Cherokee,  Creek,  Choctaw,  Coal, 
Carter,  Delaware,  Garvin,  Grady,  Haskell,  Hughes,  Johnston,  Jefferson, 
Latimer,  Le  Flore,  Love,  McClain,  Mayes,  Muskogee,  Mclntosh,  McCurtain, 
Murray,  Marshall,  Nowata,  Ottawa,  Okmulgee,  Okfuskee,  Pittsburg,  Push- 
mataha,  Pontotoc,  Rogers,  Stephens,  Sequoyah,  Seminole,  Tulsa,  Wash- 
ington, and  Wagoner.  Terms  of  the  district  court  for  the  eastern  district 
shall  be  held  at  Muskogee  on  the  first  Monday  in  January;  at  Vinita,  on 
the  first  Monday  in  March;  at  Tulsa,  on  the  first  Monday  in  April;  at 
South  McAlester,  on  the  first  Monday  in  June,  at  Ardmore,  on  the  first 
Monday  in  October;  and  at  Chickasha,  on  the  first  Monday  in  November 
in  each  year.  The  western  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  sixteen,  in  the  counties 
of  Alfalfa,  Beaver,  Beckham,  Blaine,  Caddo,  Canadian,  Cimarron,  Cleve- 
land, Comanche,  Custer,  Dewey,  Ellis,  Garfield,  Grant,  Greer,  Harmon, 
Harper,  Jackson,  Kay,  Kingfisher,  Kiowa,  Lincoln,  Logan,  Major,  Noble, 
Oklahoma,  Osage,  Pawnee,  Payne,  Pottawatomie,  Roger  Mills,  Texas, 
Tillman,  Washita,  Woods,  and  Woodward.  Terms  of  the  district  court 
for  the  western  district  shall  be  held  at  Guthrie  on  the  first  Monday  in 
January;  at  Oklahoma  City,  on  the  first  Monday  in  March;  at  Enid,  on 
the  first  Monday  in  June;  at  Lawton,  on  the  first  Monday  in  September; 
and  at  Woodward,  on  the  first  Monday  in  November:  Provided,  That  suit- 
able rooms  and  accommodations  for  holding  court  at  Woodward  are  fur- 
nished free  of  expense  to  the  United  States.  The  clerk  of  the  district 
court  for  the  eastern  district  shall  keep  his  office  at  Muskogee  and  the 
clerk  for  the  western  district  at  Guthrie,  and  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Oklahoma  City.  (Fed.  Stats.  Ann., 
2d  ed.,  Pamphlet  Supp.  Nos.  9-10,  January-April,  1917,  pp.  64,  65, 
1918  Supp.,  title,  "Judiciary,"  Supp.  2  U.  S.  Comp.  Stats.  1916,  §  1088, 
Adv.  Sheets  239,  Fed.  No.  1,  p.  57.) 

§102  (Re-enacting  §  531,  Rev.  Stats.).  The  state  of  Oregon  shall 
constitute  one  judicial  district,  to  be  known  as  the  district  of  Oregon. 
Terms  of  the  district  court  shall  be  held  at  Portland  on  the  first  Mondays 
in  March,  July,  and  November;  at  Pendleton  on  the  first  Tuesday  in  April; 
and  at  Medford  on  the  first  Tuesday  in  October.  The  marshal  and  the 


THE  JUDICIAL   CODE.  725 

clerk  for  said  district  shall  each  appoint,  in  the  manner  provided  by  law, 
at  least  one  deputy  at  Pendleton  and  one.  at  Medford,  who  shall  reside 
and  maintain  an  office  at  each  of  said  places.  (5  Fed.  Stats.  Ann., 
2d  ed.,  p.  585;  2  U.  S.  Comp.  Stats.  1916,  §  1089.) 

§  103,  as  Amended  Act  of  Sept.  9,  1914,  c.  296.  That  the  State  of 
Pennsylvania  is  divided  into  three  judicial  districts,  to  be  known  as  the 
eastern,  middle,  and  western  districts  of  Pennsylvania.  The  eastern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Berks,  Bucks,  Chester,  Delaware, 
Lancaster,  Lehigh,  Montgomery,  Northampton,  Philadelphia,  and  Schnyl- 
kill.  Terms  of  the  district  court  shall  be  held  at  Philadelphia  on  the 
second  Mondays  in  March  and  June,  the  third  Monday  in  September, 
and  the  second  Monday  in  December,  each  term  to  continue  until  the  suc- 
ceeding term  begins.  The  middle  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Adams,  Bradford,  Cameron,  Carbon,  Center,  Clinton,  Columbia,  Cum- 
berland, Dauphin,  Franklin,  Fulton,  Huntingdon,  Juniata,  Lackawanna, 
Lebanon,  Luzerne,  Lycoming,  Mifflin,  Monroe,  Montour,  Northumberland, 
Perry,  Pike,  Potter,  Snyder,  Sullivan,  Susquehanna,  Tioga,  Union,  Wayne, 
Wyoming,  and  York.  Terms  of  the  district  court  shall  be  held  at  Scran - 
ton  on  the  second  Monday  in  March  and  the  third  Monday  in  October; 
at  Harrisburg  on  the  first  Mondays  in  May  and  December;  at  Sunbury 
on  the  second  Monday  in  January;  and  at  Williamsport  on  the  first  Mon- 
day in  June.  The  clerk  of  the  court  for  the  middle  district  shall  maintain 
an  office,  in  charge  of  himself  or  a  deputy,  at  Harrisburg;  the  civil 
suits  instituted  at  that  place  shall  be  tried  there,  if  either  party  resides 
nearest  that  place  of  holding  court,  unless  by  consent  of  parties  they 
are  removed  to  another  place  for  trial.  The  western  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Allegheny,  Armstrong,  Beaver,  Bedford,  Blair. 
Butler,  Cambria,  Clarion,  Clearfield,  Crawford,  Elk,  Erie,  Fayette,  Forest. 
Greene,  Indiana,  Jefferson,  Lawrence,  McKean,  Mercer,  Somerset.  Ven- 
ango,  Warren,  Washington,  and  Westmoreland.  Terms  of  the  district 
court  shall  be  held  at  Pittsburgh  on  the  first  Monday  of  May  and  the 
second  Monday  of  November,  and  terms  of  the  court  shall  be  held  at 
Erie  on  the  third  Monday  of  March  and  the  third  Monday  of  September. 
The  clerk  and  marshal  of  said  district  shall  have  their  principal  offices 
at  Pittsburgh,  and  shall  maintain,  by  themselves  or  by  their  deputies, 
offices  at  Erie. 

The  clerk  shall  place  all  cases  in  which  the  defendants  reside  in  the 
counties  of  said  district  nearest  Erie  upon  the  trial  list  for  trial  at  Erie, 


726  APPENDIX. 

where  the  same  shall  be  tried,  unless  the  parties  thereto  stipulate  that  the 
same  may  be  tried  at  Pittsburgh.  (38  Stats.  713;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  585;  2  U.  S.  Comp.  Stats.  1916,  §  1090.) 

§  104  (Re-enacting  §  531,  Rev.  Stats.,  as  Amended  Feb.  1,  1912,  c.  27.) 
The  state  of  Rhode  Island  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Rhode  Island;  terms  of  the  district  court  shall 
be  held  at  Providence  on  the  fourth  Tuesday  in  May  and  the  third 
Tuesday  in  November.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  586;  2  U.  S. 
Comp.  Stats.  1916,  §  1091.) 

§  105  (Re-enacting  §  546,  Rev.  Stats.,  as  Amended  February  5,  1912, 
c.  28.)  The  state  of  South  Carolina  is  divided  into  two  districts,  to  be 
known  as  the  eastern  and  western  districts  of  South  Carolina.  The  west- 
ern district  shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Abbeville,  Anderson,  Chero- 
kee, Chester,  Edgefield,  Fairfield,  Greenville,  Greenwood,  Lancaster,  Lau- 
rens,  Newberry,  Oconee,  Pickens,  Saluda,  Spartanburg,  Union,  and  York. 
Terms  of  the  district  court  for  the  western  district  shall  be  held  at  Green- 
ville on  the  third  Tuesdays  in  April  and  October.  The  eastern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Aiken,  Bamberg,  Barnwell,  Beaufort, 
Berkeley,  Calhoun,  Charleston,  Chesterfield,  Clarendon,  Colleton,  Darling- 
ton, Dillon,  Dorchester,  Florence,  Georgetown,  Hampton,  Horry,  Kershaw,' 
Lee,  Lexington,  Marion,  Marlboro,  Orangeburg,  Richland,  Sumter,  and 
Williamsburg.  Terms  of  the  district  court  for  the  eastern  district  shall 
be  held  at  Charleston  on  the  first  Tuesdays  in  June  and  December;  at 
Columbia  on  the  third  Tuesday  in  January  and  the  first  Tuesday  in  Novem- 
ber, the  latter  term  to  be  solely  for  the  trial  of  civil  cases;  and  at  Florence 
on  the  first  Tuesday  in  March.  The  offices  of  the  clerk  of  the  district 
court  shall  be  at  Greenville,  and  at  Charleston;  and  the  clerk  shall  reside 
in  one  of  said  cities  and  have  a  deputy  in  the  other.  (5  Fed.  Stats.  Ann., 
2d  ed.,  p.  587;  2  U.  S.  Comp.  Stats.  1916,  §  1092.) 

Act  of  March  3,  1915,  c.  100,  §  1. 

§  1.  (South  Carolina  districts — Additional  district  judge.)  That  there 
shall  be  a  district  judge  for  the  eastern  district  of  South  Carolina  and  a 
district  judge  for  the  western  district  of  South  Carolina,  who  shall  be 
appointed  as  district  judges  are  appointed  in  other  judicial  districts  of 
the  United  States:  Provided,  That  the  President,  previous  to  appointing 
said  judge,  shall  make  public  all  indorsements  of  the  applicants  for  said 


THE  JUDICIAL   CODE.  727 

position.  The  present  district  judge,  who  is  a  resident  of  the  eastern 
district  of  South  Carolina,  is  hereby  assigned  to  said  eastern  district  as 
the  district  judge  thereof.  (38  Stats.  961;  1  U.  S.  Cemp.  Stats.  1916, 
§968e. 

§  2.  (Pending  causes — By  whom  heard.)  That  all  causes  of  a  civil 
nature  and  motions  therein  submitted  and  all  causes  and  proceedings  of  a 
civil  nature,  including  proceedings  in  bankruptcy,  now  pending  in  the 
western  district  of  South  Carolina  in  which  the  evidence  has  been  taken 
in  whole  or  in  part  before  the  present  district  judge  for  the  eastern  and 
western  districts  of  South  Carolina,  or  taken  in  whole  or  in  part  and 
submitted  to  and  passed  upon  by  the  said  district  judge,  shall  be  retained 
by  said  judge  and  proceeded  with  and  disposed  of  by  said  judge,  who 
may  for  that  purpose  continue  to  exercise  jurisdiction  in  the  said  western 
district.  (38  Stats.  961;  1  U.  S.  Comp.  Stats.  1916,  §  968f.) 

§3.  (Additional  district  attorney.)  That  there  shall  be  a  district 
attorney  for  the  eastern  district  of  South  Carolina  and  a  district  attorney 
for  the  western  district  of  South  Carolina,  who  shall  be  appointed  as  dis- 
trict attorneys  are  appointed  in  other  judicial  districts  of  the  United 
States.  The  district  attorney  for  the  eastern  district  of  South  Carolina 
and  the  district  attorney  for  the  western  district  of,  South  Carolina  shal' 
each  receive  an  annual  salary  of  $4,500.  The  present  district  attorney, 
who  is  a  resident  of  the  eastern  district  of  South  Carolina,  is  hereby 
assigned  to  said  eastern  district  as  the  district  attorney  thereof.  (38 
Stats.  961;  2  U.  S.  Comp.  Stats.  1916,  §  1362a.) 

§4.  (Additional  marshal.)  That  there  shall  be  a  marshal  for  the 
eastern  district  of  South  Carolina  and  a  marshal  for  the  western  district 
of  South  Carolina,  who  shall  be  appointed  as  marshals  are  appointed  in 
other  judicial  districts  of  the  United  States.  The  marshal  for  the  eastern 
district  of  South  Carolina  and  the  marshal  for  the  western  district  of 
South  Carolina  shall  each  receive  an  annual  salary  of  $4,500.  The  present 
marshal,  who  is  a  resident  of  the  eastern  district  of  South  Carolina,  is 
hereby  assigned  to  said  eastern  district  as  the  marshal  thereof.  (38  Stats. 
961;  2  U.  S.  Comp.  Stats.  1916,  §  1362b.) 

§5  as  Amended  Act  Sept.  1,  1916,  c.  434.  (Terms— Office  of  clerk.) 
That  terms  of  the  district  court  for  the  eastern  district  shall  be  held  at 
Charleston  on  the  first  Tuesdays  in  June  and  December;  at  Columbia  on 
the  third  Tuesday  in  January,  and  first  Tuesday  in  November;  at  Florence, 
first  Tuesday  in  March;  and  at  Aiken,  on  the  first  Tuesday  in  April  and 
October,  Terms  of  the  district  court  of  the  western  district  shall  be  held 


/28  APPENDIX. 

at  Greenville  on  the  first  Tuesday  in  April  and  the  first  Tuesday  in  October; 
at  Rock  Hill,  the  second  Tuesday  in  March  and  September;  and  at  Green- 
wood, the  first  Tuesday  in  February  and  November;  and  at  Anderson,  the 
fourth  Tuesday  in  May  and  November.  The  office  of  the  clerk  of  the  dis- 
trict court  for  the  western  district  shall  be  at  Greenville  and  the  office  of 
the  clerk  of  the  district  court  for  the  eastern  district  shall  be  at  Charleston. 
(38  Stats.  961;  2  U.  S.  Comp.  Stats.  1916,  §  1092a.) 

§106  (Re:enacting  act  of  November  3,  1893,  c.  10).  The  state  of 
South  Dakota  shall  constitute  one  judicial  district,  to  be  known  as  the 
district  of  South  Dakota.  The  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Aurora,  BeadJe,  Bon 
Homme,  Brookings,  Brule,  Charles  Mix,  Clay,  Davison,  Douglas,  Gregory, 
Hanson,  Hutchinson,  Kingsbury,  Lake,  Lincoln,  McCook,  Miner,  Minne- 
haha,  Moody,  Sanborn,  Turner,  Union,  and  Yankton,  and  in  the  Yankton 
Indian  reservation,  shall  constitute  the  southern  division  of  said  district; 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties^  of 
Brown,  Campbell,  Clark,  Codington,  Corson,  Day,  Deuel,  Edmunds,  Grant, 
Hamlin,  McPherson,  Marshall,  Roberts,  Schnasse,  Spink,  and  Walworth, 
and  in  the  Sisseton  and  Wahpeton  Indian  reservation,  and  in  that  portion 
of  the  Standing  Rock  Indian  reservation  lying  in  South  Dakota,  shall 
constitute  the  northern  division;  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Armstrong,  Buffalo,  Dewey,  Faulk,  Hand, 
Hughes,  Hyde,  Jerauld,  Lyman,  Potter,  Stanley,  and  Sully,  and  in  the 
Cheyenne  River,  Lower  Brule,  and  Crow  Creek  Indian  reservations,  shall 
constitute  the  central  division;  and  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Bennett,  Butte,  Custer,  Fall  River,  Hard- 
ing, Lawrence,  Meade,  Mellette,  Pennington,  Perkins,  Shannon,  Todd. 
Tripp,  Washabaugh,  and  Washington,  and  in  the  Rosebud  and  Pine  Ridge 
Indian  reservations,  shall  constitute  the  western  division.  Terms  of  the 
district  court  for  the  southern  division  shall  be  held  at  Sioux  Falls  on  the 
first  Tuesday  in  April  and  the  third  Tuesday  in  October;  for  th6  northern 
division,  at  Aberdeen  on  the  first  Tuesday  in  May  and  the  second  Tuesday 
in  November;  for  the  central  division,  at  Pierre  on  the  second  Tuesday 
in  June  and  the  first  Tuesday  in  October;  and  for  the  western  division, 
at  Deadwood  on  the  third  Tuesday  in  May  and  the  first  Tuesday  in  Sep- 
tember. The  clerk  of  the  district  court  shall  maintain  an  office  in  charge 
of  himself  or  a  deputy  at  Sioux  Falls,  at  Pierre,  at  Aberdeen,  and  at 
Deadwood,  which  shall  be  kept  open  for  the  transaction  of  the  business 
of  the  court.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  588;  2  U.  S.  Comp.  Stats. 
1916,  §  1093.) 


THE  JUDICIAL  CODE.  729 

§  107.  (Re-enacting  §  547,  Rev.  Stats.),  as  Amended  Act  August  20, 
1912,  c.  306.  The  state  of  Tennessee  is  divided  into  three  districts,  to 
be  known  as  the  eastern,  middle,  and  western  districts  of  Tennessee.  The 
i-Mstcni  district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Bledsoe,  Bradley,  Ham- 
ilton, James,  McMinn,*  Marion,  Meigs,  Polk,  Rhea,  and  Sequatchie,  which 
shall  constitute  the  southern  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Anderson,  Blount, 
Campbell,  Claiborne,  Grainger,  Jefferson,  Knox,  Loudon,  Monroe,  Morgan, 
Roane,  Sevier,  Scott,  and  Union,  which  shall  constitute  the  northern 
division  of  said  district;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Carter,  Cocke,  Greene,  Hamblen,  Hancock, 
Hawkins,  Johnson,  Sullivan,  Unicoi,  and  Washington,  which  shall  con- 
stitute the  northeastern  division  of  said  district.  Terms  of  the  district 
court  for  the  southern  division  of  said  district  shall  be  held  at  Chatta- 
nooga on  the  fourth  Monday  in  April  and  the  second  Monday  in  Novem- 
ber; for  the  northern  division,  at  Knoxville  on  the  fourth  Monday  in 
May  and  the  first  Monday  in  December;  and  for  the  northeastern  division, 
at  Greeneville  on  the  first  Monday  in  March  and  the  third  Monday  in 
September.  The  middle  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Bedford,  Cannon,  Cheatham,  Coffee,  Davidson,  Dickson,  Franklin,  Giles, 
Grundy,  Hickman,  Humphreys,  Houston,  Lawrence,  Lewis,  Lincoln, 
Marshall,  Maury,  Montgomery,  Moore,  Robertson,  Rutherford,  Stewart, 
Sumner,  Trousdale,  Warren,  Wayne,  Williamson,  and  Wilson,  which  shall 
constitute  the  Nashville  division  of  said  district;  also  the  territory  em 
braced  on  the  date  last  mentioned  in  the  counties  of  Clay,  Cumberland, 
Dekalb,  Fentress,  Jackson,  Macon,  Overton,  Pickett,  Putnam,  Smith,  Van 
Buren,  and  White,  which  shall  constitute  the  northeastern  division  of 
said  district.  Terms  of  the  district  court  for  the  Nashville  division  of 
said  district  shall  be  held  at  Nashville  on 'the  second  Monday  in  March 
and  the  fourth  Monday  in  September;  and  for  the  northeastern  division,  at 
Cookcville  on  the  third  Monday  in  April  and  the  first  Monday  in  Novem- 
ber: Provided,  That  suitable  accommodations  for  holding  court  at  Cooke- 
ville  shall  be  provided  by  the  county  or  municipal  authorities  without 
expense  to  the  United  States.  The  western  district  shall  include  the  ter- 
ritory embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Dyer,  Fayette,  Haywood,  Lauderdale,  Shelby,  and  Tipton, 
which  shall  constitute  the  western  division  of  said  district;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  'in  the  counties  of  Benton, 
Carroll,  Chester,  Crockett,  Decatur,  Gibson,  Hardeman,  Hardin,  Hender- 


730  APPENDIX. 

son,  Henry,  Lake,  McNairy,  Madison,  Obion,  Perry,  and  Weakley,  in- 
cluding the  waters  of  the  Tennessee  River  to  low-water  mark  on  the 
eastern  shore  thereof  wherever  such  river  forms  the  boundary  line  between 
the  western  and  middle  districts  of  Tennessee,  from  the  north  line  of  the 
state  of  Alabama  north  to  the  point  in  Henry  county,  Tennessee,  where 
the  south  boundary  line  of  the  state  of  Kentucky  strikes  the  east  bank 
of  the  river,  which  shall  constitute  the  eastern  division  of  said  district. 
Terms  of  the  district  court  for  the  western  division  of  said  district  shall 
be  held  at  Memphis  on  the  fourth  Mondays  in  May  and  November;  and 
for  the  eastern  division,  at  Jackson  on  the  fourth  Mondays  in  April  and 
October.  The  clerk  of  the  court  for  the  western  district  shall  appoint 
a  deputy  who  shall  reside  at  Jackson.  The  marshal  for  the  western 
district  shall  appoint  a  deputy  who  shall  reside  at  Jackson.  The  marshal 
for  the  eastern  district  shall  appoint  a  deputy  who  shall  reside  at  Chatta- 
nooga. The  clerk  of  the  court  for  the  eastern  district  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  Knoxville,  at  Chattanooga  and 
at  Greenville,  which  shall  be  kept  open  at  all  times  for  the  transaction 
of  the  business  of  the  court."  (Fed.  Stats.  Ann.,  2d  ed.,  p.  589;  2 
U.  S.  Comp.  Stats.  1916,  §  1094.) 

§108  (Re-enacting  act  of  March  11,  1902,  c.  183).  "The  state  of 
Texas  is  divided  into  four  districts  to  be  known  as  the  northern,  eastern, 
western,  and  southern  districts  of  Texas.  The  northern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Dallas,  Ellis,  Hunt,  Johnson,  Kaufman,  Nav- 
arro,  and  Rockwall,  which  shall  constitute  the  Dallas  division ;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Archer, 
Baylor,  Clay,  Comanche,  Erath,  Foard,  Hardeman,  Hood,  Jack,  Palo 
Pinto,  Parker,  Tarrant,  Wichita,  Wilbarger,  Wise,  and  Young,  which 
shall  constitute  the  Fort  Worth  division;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Armstrong,  Bailey,  Briscoe, 
Carson,  Castro,  Childress,  Cochran,  Collingsworth,  Cottle,  Crosby,  Dallam, 
Deaf  Smith,  Dickens,  Donley,  Floyd,  Gray,  Hale,  Hall,  Hansford,  Hart- 
ley, Hemphill,  Hockley,  Hutchinson,  King,  Lamb,  Lipscomb,  Lubbock, 
Moore,  Motley,  Ochiltree,  Oldham,  Farmer,  Potter,  Randall,  Roberts, 
Sherman,  Swisher,  and  Wheeler,  which  shall  constitute  the  Amarillo  divi- 
sion ;  also  the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Andrews,  Borden,  Callahan,  Dawson,  Eastland,  Fisher,  Gaines,  Garza, 
Haskell,  Howard,  Jones,  Kent,  Knox,  Lynn,  Martin,  Midland,  Mitchell, 
Nolan,  Scurry,  Shackelford,  Stephens,  Stonewall,  Taylor,  Terry,  Throck- 
morton,  and  Yoakuni,  which  shall  constitute  the  Abilene  division;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of  Brown, 


THE  JUDICIAL  COD*  731 

Coke,  Coleman,  Concho,  Crockett,  Glasscock,  Irion,  Menard,  Mills,  Run- 
nels, Schleicher,  Sterling,  Sutton,  Tom  Greene,  and  Upton,  which  shall 
constitute  the  San  Angelo  division  of  the  said  district.  Terms  of  the 
district  court  for  the  Dallas  division  shall  be  held  at  Dallas  on  the  second 
Monday  in  January  and  the  first  Monday  in  May;  for  the  Fort  Worth 
division,  at  Fort  Worth  on  the  first  Monday  in  November  and  the  second 
Monday  in  March;  for  the  Amarillo  division,  at  Amarillo  on  the  third 
Monday  in  April  and  the  fourth  Monday  in  September;  for  the  Abilene 
division,  at  Abilene  on  the  first  Monday  in  October  and  the  second  Monday 
in  April;  and  for  the  San  Angelo  division,  at  San  Angelo  on  the  third 
Monday  in  October  and  the  fourth  Monday  in  April.  The  clerk  of  the 
court  for  the  northern  district  shall  maintain  an  office  in  charge  of  him- 
self or  a  deputy  at  Dallas,  at  Fort  Worth,  at  Amarillo,  at  Abilene,  and  at 
San  Angelo,  which  shall  be  kept  open  at  all  times  for  the  transaction  of 
the  business  of  the  court.  The  eastern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  coun- 
ties of  Anderson,  Angelina,  Cherokee,  Gregg,  Henderson,  Houston, 
Nacogdoches,  Panola,  Rains,  Rusk,  Smith,  Van  Zandt,  and  Wood,  which 
shall  constitute  the  Tyler  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Hardin,  Jasper,  Jefferson,  Liberty, 
Newton,  Orange,  Sabine,  San  Augustine,  Shelby,  and  Tyler,  which  shall 
constitute  the  Beaumont  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Collin,  Cook,  Denton,  Grayson,  and 
Montague,  which  shall  constitute  the  Sherman  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Camp,  Cass,  Har- 
rison, Hopkins,  Marion,  Morris  and  Upshur,  which  shall  constitute  the 
Jefferson  division;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Delta,  Fannin,  Red  River,  and  Lamar,  which  shall  con- 
stitute the  Paris  division ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Bowie,  Franklin,  and  Titus,  which  shall 
constitute  the  Texarkana  division.  Terms  of  the  district  court  for  the 
Tyler  division  shall  be  held  at  Tyler  on  the  fourth  Mondays  in  January 
and  April;  for  the  Jefferson  division,  at  Jefferson  on  the  first  Monday 
in  October  and  the  third  Monday  in  February;  for  the  Beaumont  division, 
at  Beaumont  on  the  third  Monday  in  November  and  the  first  Monday  in 
April ;  for  the  Sherman  division,  at  Sherman  on  the  first  Monday  in 
January  and  the  third  Monday  in  May;  for  the  Paris  division,  at  Paris 
on  the  third  Monday  in  October  and  the  first  Monday  in  March;  and  for 
the  Texarkana  division,  at  Texarkana  on  the  third  Monday  in  March 
and  the  first  Monday  in  November.  The  clerk  of  the  court  for  the  eastern 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Sher- 


732  APPENDIX. 

man,  at  Beaumont,  and  at  Texarkana,  which  shall  he  kept  open  at  all 
times  for  the  transaction  of  the  business  of  said  court.  The  western 
district  [see  amendment  below]  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Bastrop, 
Blanco,  Burleson,  Burnet,  Caldwell,  Gillespie,  Hays,  Kimble,  Lampasas, 
Lee,  Llano,  Mason,  McCulloch,  San  Saba,  Travis,  Washington,  and  Will- 
iamson, which  shall  constitute  the  Austin  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Atascosa,  Bandera, 
Bexar,  Comal,  Dimmit,  Edwards,  Frio,  Gonzales,  Guadalupe,  Karnes, 
Kendall,  Kerr,  Medina,  and  Wilson,  which  shall  constitute  the  San 
Antonio  division;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Brewster,  Crane,  Ector,  El  Paso,  Jeff  Davis,  Loving, 
Reeves,  Presidio,  Ward,  and  Winkler,  which  shall  constitute  the  El  Paso 
division;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Bell,  Bosque,  Coryell,  Falls,  Hamilton,  Freestone,  Hill,  Leon, 
Limestone,  McLennan,  Milam,  Robertson,  and  Somervell,  which  shall 
constitute  the  Waco  division;  also  the  territory  en  braced  on  the  date 
last  mentioned  in  the  counties  of  Kinney,  Maverick,  Pecos,  Terrell,  Uvalde, 
Valverde,  and  Zavalla,  which  shall  constitute  the  Del  Rio  divisioli.  Terms 
of  the  district  court  for  the  Austin  division  shall  be  held  at  Austin  on  the 
fourth  Monday  in  January  and  the  second  Monday  in  June;  for  the 
Waco  division,  at  Waco  on  the  fourth  Monday  in  February  and  the  second 
Monday  in  November;  for  the  San  Antonio  division,  at  San  Antonio  on 
the  first  Monday  in  May  and  the  third  Monday  in  December;  for  the 
El  Paso  division,  at  El  Paso  on  the  first  Monday  in  April  and  the  first 
Monday  in  October;  and  for  the  Del  Rio  division,  at  Del  Rio  on  the  third 
Monday  in  March  and  the  fourth  Monday  in  October.  The  clerk  of  the 
court  for  the  western  district  shall  maintain  an  office  in  charge  of  him- 
self or  a  deputy  at  Austin,  El  Paso,  and  at  Del  Rio,  which  shall  be  kept 
open  at  all  times  for  the  transaction  of  business.  The  southern  district 
[see  amendment  below]  shall  include  the  territory  embraced'  on  the  first 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Duval,  La  Salle, 
MeMullen,  Nueces,  Webb,  and  Zapata,  which  shall  constitute  the  Laredo 
division;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Cameron,  Hidalgo,  and  Starr,  which  shall  constitute  the 
Brownsville  division ;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  ot  Austin,  Brazoria,  Chambers,  Galveston,  Fort 
Bend,  Matagorda,  and  Wharton,  which  shall  constitute  the  Galveston 
division ;  also  the  territory  embraced  on  the,  date  last  mentioned  in  the 
counties  of  Brazos,  Colorado,  Fayette,  Grimes,  Harris,  Lavaca,  Madison, 
Montgomery,  Polk,  San  Jacinto,  Trinity,  Walker,  and  Waller,  which  shall 


THE  JUDICIAL  CODE.  733 

constitute  the  Houston  division ;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Bee,  Calhoun,  Dewitt,  Goliad,  Jackson, 
Live  Oak,  Refugio,  Aransas,  San  Patricio,  and  Victoria,  which  shall 
constitute  the  Victoria  division.  Terms  of  the  district  court  for  the 
Galveston  division  shall  be  held  at  Galveston  on  the  second  Monday  in 
January  and  the  first  Monday  in  June;  for  the  Houston  division,  at 
Houston  on  the  fourth  Mondays  in  February  and  September;  for  the 
Laredo  division,  at  Laredo  on  the  third  Monday  in  April  and  the  second 
Monday  in  November;  for  the  Brownsville  division,  at  Brownsville  on 
the  second  Monday  in  May  and  the  first  Monday  in  December;  and  for 
the  Victoria  division,  at  Victoria  on  the  first  Monday  in  May  and  the 
fourth  Monday  in  November.  The  clerk  of  the  court  for  the  southern 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  each 
of  the  places  now  designated  for  holding  court  in  said  district.  (2  U.  S. 
Comp.  Stats.  1916,  §  1095.) 

Act  February  5,  1913,  c.  28,  creates  a  new  division  of  the  western 
district.  That  the  counties  of  Reeves,  Ward,  Martin,  Regan,  Winkler, 
Ector,  Gaines,  Andrews,  Upton,  Midland,  Loving,  Jeff  Davis,  and  Crane 
shall  constitute  a  division  of  the  western  judicial  district  of  Texas.  (37 
Stats.  663;  2  U.  S.  Comp.  Stats.  1916,  §  1098.) 

Sec.  2.  That  terms  of  the  district  court  of  the  United  States  for 
the  said  western  district  of  Texas  shall  be  held  twice  in  each  year  at  the 
city  of  Pecos,  in  Reeves  county,  and  that,  until  otherwise  provided  by 
law,  the  judge  of  said  court  shall  fix  the  times  at  which  said  court  shall 
be  held  at  Pecos,  of  which  he  shall  make  proclamation  and  give  due  notice : 
Provided,  however,  That  suitable  rooms  and  accommodations  shall  be  fur- 
nished for  the  holding  of  said  court  and  for  the  use  of  the  officers  of 
said  court  at  Pecos,  free  of  expense  to  the  government  of  the  United 
States.  (2  U.  S.  Comp.  Stats.  1916,  §  1099.) 

Act  May  29,  1912,  c.  144,  creates  a  new  division  of  the  southern  dis- 
trict. That  the  counties  of  Bee,  Live  Oak,  Aransas,  San  Patricio,  Nueces, 
Jim  Wells,  Duval,  Brooks,  and  Willacy  shall  constitute  a  division  of  the 
southern  judicial  district  of  Texas.  (37  Stats.  120;  2  U.  S.  Comp.  Stats. 
1916,  §  1096.) 

"Sec.  2.  That  terms  of  the  district  court  of  the  United  States  for 
the  said  southern  district  of  Texas  shall  be  held  twice  in  each  year  at 
the  city  of  Corpus  Christi,  in  Nueces  county,  and  that,  until  otherwise 
provided  by  law,  the  judge  of  said  court  shall  fix  the  times  at  which  said 
court  shall  be  held  at  Corpus  Christi,  of  which  he  shall  make  publication 


734  APPENDIX. 

and  give  due  notice.     (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1096;  2  U.  S.  Comp. 
Stats.  1916,  §  1097.) 

§  1,  Act  Feb.  26,  1917,  c.  122.  Additional  division  in  northern  dis- 
trict. That  the  counties  of  Archer,  Baylor,  Clay,  Cottle,  Foard,  Mon- 
tague, King,  Knox,  Wichita,  Wilbarger,  and  Young  shall  constitute  a 
division  of  the  northern  judicial  district  of  Texas. 

§  2.  Additional  terms  of  court  for  northern  district;  office  of  clerk. 
That  terms  of  the  district  court  of  the  United  States  for  the  said  northern 
district  of  Texas  shall  be  held  twice  each  year  at  the  city  of  Wichita  Falls, 
in  Wichita  County,  on  the  fourth  Monday  in  March  and  the  third  Monday 
in  November.  The  clerk  of  the  court  for  the  northern  district  of  Texas 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Wichita  Falls, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court :  Provided,  That  suitable  accommodations  for  holding  court 
at  Wichita  Falls  shall  be  provided  by  the  county  or  municipal  authorities 
without  expense  to  the  United  States.  (Fed.  Stats.  Ann.,  2d  ed.,  1918 
Supp.,  title  "Judiciary";  Pamphlet  Supp.  Nos.  9-10,  January-April,  1917, 
p.  66;  U.  S.  Comp.  Stats.  1916,  Supp.,  §§  1095a,  1095b,  Adv.  Sheets,  239 
Fed.  No.  4,  p.  57.) 

Act  Feb.  26,  1917,  c.  120,  provides  for  an  additional  district  judge 
for  western  district  of  Texas. 

That  the  President  of  the  United  States,  by  and  with  the  advice  and 
consent  of  the  Senate,  shall  appoint  an  additional  judge  of  the  district 
court  of  the  United  States  for  the  Western  District  of  Texas,  who  shall 
possess  the  same  powers,  perform  the  same  duties,  and  receive  the  same 
compensation  and  allowance  as  the  present  judge  of  said  district,  and 
whose  official  place  of  residence  shall  be  maintained  at  El  Paso  until 
otherwise  provided  by  law.  (1918  Supp.  Fed.  Stats.  Ann.,  title  "Judi- 
ciary"; U.  S.  Comp.  Stats.  §  968h;  Adv.  Sheets,  239  Fed.  No.  1.) 

§  109  (Re-enacting  28  Stats.  110,  with  amendment  thereto,  29  Stats. 
620).  The  state  of  Utah  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Utah.  It  is  divided  into  two  divisions,  to  be 
known  as  the  northern  and  central  divisions.  The  northern  division  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Boxelder,  Cache,  Davis,  Morgan,  Rich,  and 
Weber.  The  central  division  shall  include  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Beaver,  Carbon,  Emery,  Garfield, 
Grand;  Iron,  Juab,  Kane,  Millard,  Piute,  Salt  Lake,  San  Juan,  San  Pete, 
Sevier,  Summit,  Tooele,  Uinta,  Utah,  Wasatch,  Washington,  and  Wayne. 


THE  JUDICIAL  CODE.  73") 

Terms  of  the  district  court  for  the  northern  division  shall  be  held  at 
Ogden  on  the  second  Mondays  in  March  and  September;  and  for  the 
central  division,  at  Salt  Lake  City  on  the  second  Mondays  in  April  and 
November.  The  clerk  of  the  court  for  said  district  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  each  of  the  places  where  the 
court  is  now  required  to  be  held  in  the  district.'  (5  Fed.  Stats.  Ann., 
2d  ed.,  p.  593;  2  U.  S.  Comp.  Stats.  1916,  §  1100.) 

§  110  (Re-enacting  §  531,  Rev.  Stats.,  as  Amended  Feb.  1,  1912,  c.  20). 
The  state  of  Vermont  shall  constitute  one  judicial  district,  to  be  known 
as  the  district  of  Vermont.  Terms  of  the  district  court  shall  be  held 
at  Burlington  on  the  fourth  Tuesday  in  February,  at  Windsor  on  the 
third  Tuesday  in  May,  at  Rutland  on  the  first  Tuesday  in  October,  and 
at  Brattleboro  on  the  third  Tuesday  in  December.  In  each  year  one  of 
the  stated  terms  of  the  district  court  may,  when  adjourned,  be  adjourned 
to  meet  at  Montpelier,  and  one  at  Newport;  Provided,  however,  That 
suitable  rooms  and  accommodations  shall  be  furnished  for  the  holdings 
for  said  court  and  for  the  use  of  the  officers  of  said  court  at  Brattleboro, 
free  of  expense  to  the  government  of  the  United  States,  until  the  public 
building  provided  for  by  act  of  Congress  shall  be  erected.  (5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  594;  2  U.  S.  Comp.  Stats.  1916,  §  1101.) 

§111  (Re-enacting  §549,  Rev.  Stats.).  The  state  of  Virginia  is 
divided  into  two  districts,  to  be  known  as  the  eastern  and  western  dis- 
tricts of  Virginia.  The  eastern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Accomac,  Alexandria,  Amelia,  Brunswick,  Caroline,  Charles  City,  Ches- 
terfield, Culpepper,  Dinwiddie,  Elizabeth  City,  Essex,  Fairfax,  Fauquier, 
Gloucester,  Goochland,  Greensville,  Hanover,  Henrico,  Isle  of  Wight, 
James  City,  King  and  Queen,  King  George,  King  William,  Lancaster, 
Loudoun,  Louisa,  Lunenberg,  Mathews,  Mecklenburg,  Middlesex,  Nanse- 
mond,  New  Kent,  Norfolk,  Northampton,  Northumberland,  Nottoway, 
Orange,  Powhatan,  Prince  Edward,  Prince  George,  Prince  William,  Prin- 
cess Anne,  Richmond,  Southampton,  Spottsylvania,  Stafford,  Surry,  Sus- 
sex, Warwick,  Westmoreland,  and  York.  Terms  of  the  district  court 
shall  oe  held  at  Richmond  on  the  first  Mondays  in  April  and  October; 
at  Norfolk  on  the  first  Mondays  in  May  and  November;  and  at  Alex- 
andria on  the  first  Mondays  in  January  and  July.  The  western  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Allegheny,  Albermarle,  Amherst, 
Appomattox,  Augusta,  Bath,  Bedford,  Bland,  Botetourt,  Buchanan,  Buck- 
ingham, Campbell,  Carroll,  Charlotte,  Clarke,  Craig,  Cumberland,  Dick- 


736  APPENDIX. 

enson,  Floyd,  Fluvanna,  Franklin,  Frederick,  Giles,  Grayson,  Greene, 
Halifax,  Henry,  Highland,  Lee,  Madison,  Montgomery,  Nelson,  Page, 
Patrick,  Pulaski,  Pittsylvania,  Rappahannock,  Roanoke,  Rockbridge, 
Rockingham,  Russell,  Scott,  Shenandoah,  Smyth,  Tazewell,  Warren,  Wash- 
ington, Wise,  and  Wythe.  Terms  of  the  district  court  shall  be  held  at 
Lynchburg  on  the  Tuesdays  after  the  second  Mondays  in  March  and  Sep- 
tember; at  Danville  on  the  Tuesdays  after  the  second  Mondays  in  April 
and  November;  at  Abingdon  on  the  Tuesdays  after  the  first  Mondays  in 
May  and  October;  at  Harrisonburg  on  the  Tuesdays  after  the  first  Mondays 
in  June  and  December;  at  Charlottesville  on  the  second  Monday  in  Janu- 
ary and  the  first  Monday  in  July;  at  Roanoke, on  the  third  Monday  in 
February  and  the  third  Monday  in  June;  and  at  Big  Stone  Gap  oh  the 
fourth  Monday  in  January  and  the  second  Monday  in  August.  The  clerk 
of  the  court  for  the  western  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Lynchburg,  at  Danville,  at  Charlottesville,  at 
Roanoke,  at  Abingdon,  and  at  Big  Stone  Gap,  which  shall  be  kept  open 
at  all  times  for  the  transactions  of  business  of  the  court.  (5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  594;  2  U.  S.  Comp.  Stats.  1916,  §  1102.) 

§112.  (Re-enacting  act  of-  April  5,  1890,  c.  65,  25  Stats.  45).  The 
state  of  Washington  is  divided  into  two  districts,  to  be  known  as  the 
eastern  and  western  district  of  Washington.  The  eastern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Spokane,  Stevens.  Ferry,  Okanogan,  Chelan, 
Grant,  Douglas,  Lincoln,  and  Adams,  with  the  waters  thereof,  including 
all  Indian  reservations  within  said  counties,  which  shall  constitute  the 
northern  division ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Asotin,  Garfield,  Whitman,  Columbia,  Franklin,  Walla 
Walla,  Benton,  Klickitat,  Kittitas,  and  Yakima,  with  the  waters  thereof, 
including  all  Indian  reservations  within  said  counties,  which  shall  con- 
stitute the  southern  division  of  said  district.  Terms  of  the. district  court 
for  the  northern  division  shall  be  held  at  Spokane  on  the  first  Tuesdays 
in  April  and  September;  for  the  southern  division,  at  Walla  Walla  on  the 
first  Tuesdays  in  June  and  December,  and  at  North  Yakima,  on  the  first 
Tuesdays  in  May  and  October.  The  western  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Whatcom,  Skagit,  Snohomish,  King,  San  Juan,  island, 
Kitsap,  Clallam,  and  Jefferson,  with  the  waters  thereof,  including  all 
Indian  reservations  within  said  counties,  which  shall  constitute  the  north- 
ern division;  also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Pierce,  Mason,  Thurston,  Chehalis,  Pacific,  Lewis,  Wah- 
kiakum,  Cowlitz,  Clarke,  and  Skamania,  with  the  waters  thereof,  including 


THE  JUDICIAL   CODE.  737 

all  Indian  reservations  within  said  counties,  which  shall  constitute  the 
southern  division  of  said  district.  Terms  of  the  district  court  for  the 
northern  division  shall  be  held  at  Bellingham  on  the  first  Tuesdays  in 
April  and  October;  at  Seattle  on  the  first  Tuesdays  in  May  and  Novem- 
ber; and  for  the  southern  division,  at  Tacoma  on  the  first  Tuesdays  in 
February  and  July.  The  clerks  of  the  courts  for  the  eastern  and  western 
districts  shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  each 
place  in  their  respective  districts  where  terms  of  court  are  now  required 
to  be  held.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  595;  2  U.  S.  Comp.  Stats. 
1916,  §  1103.) 

§  113,-  as  Amended  Act  Aug.  22,  1914,  c.  265.  The  State  of  West 
Virginia  is  divided  into  two  districts,  to  be  known  as  the  northern  and 
southern  districts  of  West  Virginia.  The  northern  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Hancock,  Brooke,  Ohio,  Marshall,  Tyler,  Pleasants, 
Wood,  Wirt,  Ritchie,  Doddridge,  Wetzel,  Monangalia,  Marion,  Harrison, 
Lewis,  Gilmer,  Calhoun,  Upshur,  Barbour,  Taylor,  Preston,  Tucker,  Ran- 
dolph, Pendleton,  Hardy,  Grant,  Mineral,  Hampshire,  Morgan,  Berkeley, 
and  Jefferson,  with  the  waters  thereof.  Terms  of  the  district  court  for 
the  northern  district  shall  be  held  at  Martinsburg  on  the  first  Tuesday  of 
April  and  the  third  Tuesday  of  September;  at  Clarksburg  on  the  second 
Tuesday  of  April  and  the  first  Tuesday  of  October;  at  Wheeling  on  the 
first  Tuesday  of  May  and  the  third  Tuesday  of  October;  at  Philippi  on 
the  fourth  Tuesday  of  May  and  the  second  Tuesday  of  November;  at 
Elkins  on  the  first  Tuesday  in  July  and  the  first  Tuesday  in  December; 
and  at  Parkersburg  on  the  second  Tuesday  of  January  and  the  second 
Tuesday  of  June;  Provided,  That  a  place  for  holding  court  at  Philippi 
shall  be  furnished  free  of  cost  to  the  United  States  by  Barbour  County 
until  other  provision  is  made  therefor  by  law :  And  provided  further,  That 
a  place  for  holding  court  at  Elkins  shall  be  furnished  free  of  cost  to  the 
United  States  by  Randolph  County  until  other  provision  is  made  therefor 
by  law.  The  southern  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Jackson, 
Roane,  Clay,  Braxton,  Webster,  Nicholas,  Pocahontas,  Greenbrier,  Fayette, 
Boone,  Kanawha,  Putnam,  Mason,  Cabell,  Wayne,  Lincoln,  Logan,  Mingo, 
Raleigh,  Wyoming,  McDowell,  Mercer,  Summers,  and  Monroe,  with  the 
waters  thereof.  Terms  of  the  district  court  for  the  southern  district 
shall  be  held  at  Charleston  on  the  first  Tuesday  of  June  and  the  third 
Tuesday  of  November;  at  Huntington  on  the  first  Tuesday  of  April  and 
the  first  Tuesday  after  the  third  Monday  of  September;  at  Bluefield  on 

Manual— 47 


738  APPENDIX. 

the  first  Tuesday  of  May  and  the  third  Tuesday  of  October;  at  Williamson 
on  the  first  Tuesday  of  October;  at  Webster  Springs  on  the  first  Tuesday 
of  September;  and  at  Lewisburg  on  the  second  Tuesday  of  July:  Provided, 
That  a  place  for  holding  court  at  Webster  Springs  shall  be  furnished  free 
of  cost  to  the  United  States :  And  provided  further,  That  a  place  for  hold- 
ing court  at  Williamson  shall  be  furnished  free  of  cost  to  the  United 
States  by  Mingo  County  until  other  provision  is  made  therefor  by  law. 
(38  Stats.  702;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  596;  2  U.  S.  Comp.  Stats. 
1916,  §  1104.) 

§114  (Re-enacting  §550,  Rev.  Stats.).  The  state  of  Wisconsin  is 
divided  into  two  districts,  to  be  known  as  the  eastern  and  western  districts 
of  Wisconsin.  The  eastern  districts  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Brown,  Calumet,  Dodge,  Door,  Florence,  Fond  du  Lac,  Forest,  Green 
Lake,  Kenosha,  Kewaunee,  Langlade,  Manitowoc,  Marinette,  Marquette, 
Milwaukee,  Oconto,  Outagamie,  Ozaukee,  Racine,  Shawano,  Sheboygan, 
Walworth,  Washington,  Waukesha,  Waupaca,  Waushara,  and  Winnebago. 
Terms  of  the  district  court  for  said  district  shall  be  held  at  Milwaukee 
on  the  first  Mondays  in  January  and  October;  at  Oshkosh  on  the  second 
Tuesday  in  June;  and  at  Green  Bay  on  the  first  Tuesday  in  April.  The 
western  district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Adams,  Ashland,  Bar- 
ron,  Bayfield,  Buffalo,  Burnett,  Chippewa,  Clark,  Columbia,  Crawford, 
Dane,  Dunn,  Douglas,  Eau  Claire,  Grant,  Green,  Iowa,  Iron,  Jackson, 
Jefferson,  Juneau,  La  Crosse,  Lafayette,  Lincoln,  Marathon,  Monroe, 
Oneida,  Pepin,  Pierce,  Polk,  Portage,  Price,  Richland,  Rock,  Rusk,  Saint 
Croix,  Sauk,  Sawyer,  Taylor,  Tremepealeau,  Vernon,  Vilas,  Washburu, 
and  Wood.  Terms  of  the  district  court  for  said  district  shall  be  held 
at  Madison  on  the  first  Tuesday  in  December;  at  Eau  Claire  on  the  first 
Tuesday  in  June;  at  La  Crosse  on  the  third  Tuesday  in  September;  and 
at  Superior  on  the  fourth  Tuesday  in  January  and  the  second  Tuesday  in 
July.  The  district  court  for  each  of  said  districts  shall  be  open  at  all 
times  for  the  purpose  of  hearing  and  deciding  causes  of  admiralty  and 
maritime  jurisdiction,  so  far  as  the  same  can  be  done  without  a  jury. 
The  clerk  of  the  court  for  the  western  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Madison,  at  La  Crosse,  and  at  Superior, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court.  The  marshal  for  the  western  district  shall  appoint  a  deputy 
marshal  who  shall  reside  and  keep  his  office  at  Superior.  All  writs  and 
other  process,  except  criminal  warrants,  issued  at  Superior,  may  be  made 


THE  JUDICIAL   CODE.  739 

returnable  at  Superior;  and  the  clerk  at  that  place  shall  keep  in  his  office 
the  original  records  of  all  actions,  prosecutions,  and  special  proceedings 
so  commenced  and  pending  therein.  Criminal  warrants  may  be  returned 
at  any  place  within  the  district  where  court  is  held.  Whenever  warrants 
issued  at  Superior  shall  be  returned  at  any  other  place,  the  clerk  of  the 
court  wherein  the  warrant  is  returned,  shall  certify  the  same,  under  the 
seal  of  the  court,  together  with  the  plea  and  other  proceedings  had  thereon, 
and  the  determination  of  the  court  upon  such  plea  or  proceedings,  with 
all  papers  and  orders  filed  in  reference  thereto,  to  the  clerk  of  the  court 
at  Superior;  and  the  clerk  at  Superior  shall  enter  upon  his  records  a 
minute  of  the  proceedings  had  upon  the  return  of  said  warrant,  certified 
as  aforesaid.  All  causes  and  proceedings  instituted  in  the  court  at 
Superior,  shall  be  tried  therein,  unless  by  consent  of  the  parties,  or  upon 
the  order  of  the  court,  they  are  transferred  to  another  place  for  trial. 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  597;  2  U.  S.  Comp.  Stats.  1916,  §  1105.) 

§115  (Re-enacting  26  Stats.  225).  The  state  of  Wyoming  and  the 
Yellowstone  National  Park  shall  constitute  one  judicial  district,  to  be 
known  as  the  district  of  Wyoming.  Terms  of  the  district  court  for  said 
district  shall  be  held  at  Cheyenne  on  the  second  Mondays  in  May  and 
November;  at  Evanston  on  the  second  Tuesday  in  July;  and  at  Lander 
on  the  first  Monday  in  October;  and  the  said  court  shall  hold  one  session 
annually  at  Sheridan,  and  in  said  national  park,  on  such  dates  as  the 
court  may  order.  The  marshal  and  clerk  of  the  said  court  shall  each, 
respectively,  appoint  at  least  one  deputy  to  reside  at  Evanston,  and  one 
to  reside  at  Lander,  unless  he  himself  shall  reside  there,  and  shall  also 
maintain  an  office  at  each  of  those  places:  Provided,  That  until  a  public 
building  is  provided  at  Lander,  suitable  accommodations  for  holding  court 
in  said  town  shall  be  furnished  the  government  at  an  expense  not  to 
exceed  three  hundred  dollars  annually.  The  marshal  of  the  United  States 
for  the  said  district  may  appoint  one  or  more  deputy  marshals  for  the 
Yellowstone  National  Park,  who  shall  reside  in  said  park.  (5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  598;  2  U.  S.  Comp.  Stats.  1916,  §  1106.) 


740 


APPENDIX. 


CHAPTER  SIX. 


CIRCUIT  COURTS  OP  APPEALS. 


SEO. 

116.  Circuits. 

117.  Circuit  courts  of  appeals. 

118.  Circuit  judges. 

119.  Allotment  of  justices  to  the  cir- 

cuits. 

120.  Chief  Justice  and  associate  jus- 

tices of  Supreme  Court,  and 
district  judges,  may  sit  in  cir- 
cuit court  of  appeals. 

121.  Justices,  alloted  to  circuits,  how 

designated. 

122.  Seals,     forms    of    process,    and 

rules. 

123.  Marshals. 

124.  Clerks. 

125.  Deputy  clerks;  appointment  and 

removal. 

126.  Terms. 

127.  Rooms   for  court,  how  provided. 

128.  Jurisdiction;      when      judgment 

final. 


SEO. 

129.  Appeals   in   proceedings    for   in- 

junctions  and  receivers. 

130.  Appellate    and    supervisory    ju- 

risdiction under  the  bankrupt 
act. 

131.  Appeals  from  the  United  States 

court  for  China. 

132.  Allowance  of  appeals,  etc. 

133.  Writs     of     error     and     appeals 

from  the  supreme  courts  of 
Arizona  and  New  Mexico. 

134.  Writs     of     error     and     appeals 

from  district  court  for  Alaska 
to  circuit  court  of  appeals  for 
ninth  circuit;  court  may  cer- 
tify question  to  the  Supreme 
Court. 

135.  Appeals  and  writs  of' error  from 

Alaska;  where  heard. 


§116  (Including  §  604,  Rev.  Stats.).  There  shall  be  nine  judicial  cir- 
cuits of  the  United  States,  constituted  as  follows : 

First.  The  first  circuit  shall  include  the  districts  of  Rhode  Island, 
Massachusetts,  New  Hampshire,  Maine,  and  Porto  Rico.  (Amendment 
Act  Jan.  28,  1915,  c.  22.) 

Second.  The  second  circuit  shall  include  the  districts  of  Vermont, 
Connecticut,  and  New  York. 

Third.  The  third  circuit  shall  include  the  districts  of  Pennsylvania, 
New  Jersey,  and  Delaware. 

Fourth.  The  fourth  circuit  shall  include  the  districts  of  Maryland,  Vir- 
ginia, West  Virginia,  North  Carolina,  and  South  Carolina. 

Fifth.  The  fifth  circuit  shall  include  the  districts  of  Georgia,  Florida, 
Alabama,  Mississippi,  Louisiana,  and  Texas. 

Sixth.  The  sixth  circuit  shall  include,  the  districts  of  Ohio,  Michigan, 
Kentucky,  and  Tennessee. 

Seventh.  The  seventh  circuit  shall  include  the  districts  of  Indiana, 
Illinois,  and  Wisconsin. 

Eighth.  The  eighth  circuit  shall  include  the  districts  of  Nebraska,  Min- 
nesota, Iowa,  Missouri,  Kansas,  Arkansas,  Colorado,  Wyoming,  North 
Dakota,  South  Dakota,  Utah,  and  Oklahoma. 


THE  JUDICIAL  CODE.  741 

Ninth.  The  ninth  circuit  shall  include  the  district*  of  California, 
Oregon,  Nevada,  Washington,  Idaho,  Montana,  and  Hawaii.  (3f»  Stats. 
1131;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  599;  2  U.  S.  Comp.  Stats.  Id  Hi.  $  1107; 
Foster's  Federal  Practice,  5th  ed.,  pp.  8,  9.  In  general,  Barrett  v.  United 
States,  -169  U.  S.  218,  42  L.  Ed,  723,  18  Sup.  Cf  3-J7.J 

§  117  (Re-enacting  26  Stats.  826).  There  shall  be  in  each  circuit  a 
circuit  court  of  appeals,  which  shall  consist  of  three  judges,  of  whom  two 
shall  constitute  a  quorum,  and  which  shall  be  a  court  of  record,  with 
appellate  jurisdiction  as  hereinafter  limited  and  established.  (36  Stats. 
1131;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  GOO;  2  U.  S.  Comp.  Stats.  1916,  §  1108.) 

§  118  (Superseding  §  2,  Act  of  March  3,  1891,  26  Stats.  826).  There 
shall  be  in  the  second,  seventh,  and  eighth  circuits,  respectively,  four  cir- 
cuit judges,  in  the  fourth  circuit,  two  circuit  judges,  and  in  each  of  the 
other  circuits,  three  circuit  judges,  to  be  appointed  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate.  They  shall  be  entitled 
to  receive  a  salary  at  the  rate  of  seven  thousand  dollars  a  year,  each, 
payable  monthly.  Each  circuit  judge  shall  reside  within  his  circuit. 
The  circuit  judges  in  each  circuit  shall  be  judges  of  the  circuit  court  of 
appeals  in  that  circuit,  and  it  shall  be  the  duty  of  each  circuit  judge  in 
each  circuit  to  sit  as  one  of  the  judges  of  the  circuit  court  of  appeals  in 
that  circuit  from  time  to  time  according  to  law :  Provided,  That  nothing 
in  this  section  shall  be  construed  to  prevent  any  circuit  judge  holding 
district  court  or  serving  in  the  commerce  court,  or  otherwise,  as  provided 
for  and  authorized  in  other  sections  of  this  act.  (36  Stats.  1131,  as 
amended  by  37  Stats.  53;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  601;  2  U.  S.  Comp. 
Stats.  1916,  §  1109.) 

§119  (Superseding  §606,  Rev.  Stats.).  The  Chief  Justice  and  asso- 
ciate justices  of  the  Supreme  Court  shall  be  allotted  among  the  circuits 
by  an  order  of  the  court,  and  a  new  allotment  shall  be  made  whenever  it 
becomes  necessary  or  convenient  by  reason  of  the  alteration  of  any  circuit, 
or  of  the  new  appointment  of  a  Chief  Justice  or  associate  justice,  or  other- 
wise. If  a  new  allotment  becomes  necessary  at  any  other  time  than 
during  a  term,  it  shall  be  made  by  the  Chief  Justice,  and  shall  be  binding 
until  the  next  term  and  until  a  new  allotment  by  the  court.  Whenever, 
by  reason  of  death  or  resignation,  no  justice  is  allotted  to  a  circuit,  the 
Chief  Justice  may,  until  a  justice  is  regularly  allotted  thereto,  temporarily 
assign  a  justice  of  another  circuit  to  such  circuit.  (36  Stats.  1131;  5  Fed. 
State.  Ann.,  2d  ed.,  p.  602;  2  U.  S.  Comp.  Stats.  1916,  §  1111.) 


742  APPENDIX. 

§  120  (Re-enacting  §  3,  Act  March  3,  1891,  c.  217,  26  Stats.  827).  The 
Chief  Justice  and  the  associate  justices  of  the  Supreme  Court  assigned 
to  each  circuit,  and  the  several  district  judges  within  each  circuit,  shall  be 
competent  to  sit  as  judges  of  the  circuit  court  of  appeals  within  their 
respective  circuits.  In  case  the  Chief  Justice  or  an  associate  justice  of 
the  Supreme  Court  shall  attend  at  any  session  of  the  circuit  court  of 
appeals,  he  shall  preside.  In  the  absence  of  such  Chief  Justice,  or  asso- 
ciate justice,  the  circuit  judges  in  attendance  upon  the  court  shall  preside 
in  the  order  of  the  seniority  of  their  respective  commissions.  In  case  the 
full  court  at  any  time  shall  not  be  made  up  by  the  attendance  of  the  Chief 
Justice  or  the  associate  justice,  and  the  circuit  judges,  one  or  more  district 
judges  within  the  circuit  shall  sit  in  the  court  according  to  such  order  or 
provision  among  the  district  judges  as  either  by  general  or  particular 
assignment  shall  be  designated  by  the  court:  Provided,  That  no  judge 
before  whom  a  cause  or  question  may  have  been  tried  or  heard  in  a  district 
court,  or  existing  circuit  court,  shall  sit  on  the  trial  or  hearing  of  such 
cause  or  question  in  the  circuit  court  of  appeals.  (36  Stats.  1132;  5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  602;  2  U.  S.  Comp.  Stats.  1916,  §  1112;  Poster's 
Federal  Practice,  5th  ed.,  pp.  2417,  2539.)  A  decree  in  which  a  dis- 
qualified judge  took  part  will  be  quashed  and  set  aside  without  regard  to 
its  merits.  (Moran  v.  Dillingham,  174  U.  S.  153,  43  L.  Ed.  930,  19  Sup. 
Ct.  620.) 

§  121  (Re-enacting  §  605,  Rev.  Stats.).  The  words  "circuit  justice"  and 
"justice  of  a  circuit,"  when  used  in  this  title,  shall  be  understood  to  desig- 
nate the  justice  of  the  Supreme  Court  who  is  allotted  to  any  circuit;  but 
the  word  "judge,"  when  applied  generally  to  any  circuit,  shall  be  under- 
stood to  include  such  justice.  (36  Stats.  1132;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  604;  2  U.  S.  Comp.  Stats.  1916,  §  1113.) 

§  122  (Re-enacting  part  of  §  2,  Act  of  March  3,  1891,  c.  517,  26  Stats. 
826).  Each  of  said  circuit  courts  of  appeals  shall  prescribe  the  form  and 
style  of  its  seal,  and  the  form  of  writs  and  other  process  and  procedure 
as  may  be  conformable  to  the  exercise  of  its  jurisdiction;  and  shall  have 
power  to  establish  all  rules  and  regulations  for  the  conduct  of  the  busi- 
ness of  the  court  within  its  jurisdiction  as  conferred  by  law.  (36  Stats. 
1132;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  604;  2  U.  S.  Comp.  Stats.  1916,  §  1114; 
Bradford  v.  Southern  Ry.  Co.,  195  U.  S.  243,  49  L.  Ed,  178,  25  Sup.  Ct. 
55.) 

§  123  (Superseding  part  of  §  32,  Act  of  March  3,  1891,  c.  517,  26  Stats. 
826).  The  United  States  marshals  in  and  for  the  several  districts  of 


THE  JUDICIAL  cobfi.  743 

said  courts  shall  be  the  marshals  of  said  circuit  courts  of  appeals,  and 
shall  exercise  the  same  powers  and  perform  the  same  duties,  under  the 
regulations  of  the  court,  as  are  exercised  and  performed  by  the  marshal 
of  the  Supreme  Court  of  the  United  States,  so  far  as  the  same  may  be 
applicable.  (36  Stats.  1132;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  604 j  2  U.  8. 
Comp.  Stats.  1916,  §  1115.) 

§  124  (Re-enacting  part  of  §  2,  Act  of  March  3,  1891,  c.  517,  26  Stats. 
826).  Each  court  shall  appoint  a  clerk,  who  shall  exercise  the  same  powers 
and  perform  the  same  duties  in  regard  to  #11  matters  within  its  juris- 
diction, as  are  exercised  and  performed  by  the  clerk  of  the  Supreme  court, 
so  far  as  the  same  may  be  applicable.  (36  Stats.  1132;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  605;  2  U.  S.  Comp.  Stats.  1916,  §  1116.  In  general, 
Morton  v.  U.  S.,  59  Fed.  349.) 

§  125  (New  legislation).  The  clerk  of  the  circuit  court  of  appeals  for 
each  circuit  may,  with  the  approval  of  the  court,  appoint  such  number  of 
deputy  clerks  as  the  court  may  deem  necessary.  Such  deputies  may  be 
removed  at  the  pleasure  of  the  clerk  appointing  them,  with  the  approval 
of  the  court.  In  case  of  the  death  of  the  clerk  his  deputy  or  deputies 
shall,  unless  removed  by  the  court,  continue  in  office  and  perform  the 
duties  of  the  clerk  in  his  name  until  a  clerk  is  appointed  and  has  qualified ; 
and  for  the  defaults  or  misfeasances  in  office  of  any  such  deputy,  whether 
in  the  lifetime  of  the  clerk  or  after  his  death,  the  clerk  and  his  estate  and 
the  sureties  on  his  official  bond  shall  be  liable,  and  his  executor  or  ad- 
ministrator shall  have,  such  remedy  for  such  defaults  or  misfeasances  com- 
mitted after  his  death  as  the  clerk  would  be  entitled  to  if  the  same  had 
occurred  in  his  lifetime.  (36  Stats.  1132;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  605;  2  U.  S.  Comp.  Stats.  1916,  §  1117.) 

§126  (Re-enacting  26  Stats.  827).  A  term  shall  be  held  annually  by 
the  circuit  courts  of  appeals  in  the  several  judicial  circuits  at  the  follow- 
ing places,  and  at  such  times  as  may  be  fixed  by  said  courts,  respectively : 
In  the  first  circuit,  in  Boston;  in  the  second  circuit,  in  New  York;  in  the 
third  circuit,  in  Philadelphia;  in  the  fourth  circuit,  in  Richmond;  in  the 
fifth  circuit,  in  New  Orleans,  Atlanta,  Fort  Worth,  and  Montgomery;  in 
the  sixth  circuit,  in  Cincinnati;  in  the  seventh  circuit,  in  Chicago;  in  the 
eighth  circuit,  in  Saint  Louis,  Denver,  or  Cheyenne,  and  Saint  Paul;  in 
the  ninth  circuit,  in  San  Francisco,  and  each  year  in  two  other  places  in 
said  circuit  to  be  designated  by  the  judges  of  said  court;  and  in  each  of 
the  above  circuits,  terms  may  be  held  at  such  other  times  and  in  such  other 
places  as  said  courts,  respectively,  may  from  time  to  time  designate:  Pro- 
vided, That  terms  shall  be  held  in  Atlanta  on  the  first  Monday  in  October, 


744  APPENDIX. 

in  Fort  Worth  on  the  first  Monday  in  November,  in  Montgomery  on  the 
third  Monday  in  October,  in  Denver  or  in  Cheyenne  on  the  first  Monday 
in  September,  and  in  Saint  Pan!  on  the  first  Monday  in  May.  All  appeals, 
writs  of  error,  and  other  appellate  proceedings  which  may  be  taken  or 
prosecuted  from  the  district  courts  of  the  United  States  in  the  state  of 
Georgia,  in  the  state  of  Texas,  and  in  the  state  of  Alabama,  to  the  circuit 
.  court  of  appeals  for  the  fifth  judicial  circuit  shall  be  heard  and  -disposed 
of,  respectively,  by  said  court  at  the  terms  held  in  Atlanta,  in  Fort  Worth, 
and  in  Montgomery,  except  that  appeals  or  writs  of  error  in  cases  of 
injunctions  and  in  all  other  ^ases  which,  under  the  statutes  and  rules,  or 
in  the  opinion  of  the  court,  are  entitled  to  be  brought  to  a  speedy  hear- 
ing may  be  heard  and  disposed  of  wherever  said  court  may  be  sitting. 
All  appeals,  writs  of  errors,  and  other  appellate  proceedings  which  may 
hereafter  be  taken  or  prosecuted  from  the  district  court  of  the  United 
States  at  Beaurnonty  Texas,  to  the  circuit  court  of  appeals  for  the  fifth 
circuit,  shall  be  heard  and  disposed  of  by  the  said  circuit  court  of  appeals 
at  the  terms  of  court  held  at  New  Orleans:  Provided,  That  nothing  herein 
shall  prevent  the  court  from  hearing  appeals  or  writs  of  error  wherever 
the  said  court  shall  sit,  in  cases  of  injunctions  and  in  all  other  cases  which, 
under  the  statutes  and  the  rules,  or  in  the  opinion  of  the  court,  are  entitled 
to  be  brought  to  a  speedy  hearing.  All  appeals,  writs  of  error,  and  other 
appellate  proceedings  which  may  be  taken  or  prosecuted  from  the  dis- 
trict courts  of  the  United  States  in  the  states  of  Colorado,  Utah,  and 
Wyoming,  and  the  supreme  court  of  the  Territory  of  New  Mexico  to  the 
circuit  court  of  appeals  for  the  eighth  judicial  circuit,  shall  be  heard 
and  disposed  of  by  said  court  at  the  terms  held  either  in  Denver  or 
in  Cheyenne,  except  that  any  case  arising  in  any  of  said  states  or  terri- 
tory may,  by  consent  of  all  the  parties,  be  heard  and  disposed  of  at  a 
term  of  said  court  other  than  the  one  held  in  Denver  or  Cheyenne.  (30 
Stats.  1132;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  605;  2  U.  S.  Comp.  Stats.  1916, 
§  1118;  Foster's  Federal  Practice,  5th  ed.,  p.  11.) 

Act  of  July  17,  1916,  c.  241. 

[Circuit  Court  of  Appeals— Fourth  Circuit — Additional  term."]  That 
the  judges  of  the  United  States  Circuit  Court  of  Appeals  for  the  Fourth 
Circuit  shall  annually  open  and  hold  a  term  of  the  court  of  said  circuit 
at  Asheville,  North  Carolina,  at  such  time  as  may  be  fixed  by  the  judges 
thereof.  (Fed.  Stats.  Ann.,  2d  ed.,  1918  Supp.,  title  "Judiciary";  Pam- 
phlet Supp.  No.  8,  October  1916,  p.  129;  2  U.  S.  Comp.  Stats.  1916, 
§  1118a,  p.  1388.) 


THE  JUDICIAL  CODE.  745 

§  127  (Re-enacting  part  of  26  Stats.  829).  The  marshals  for  the  several 
districts  in  which  said  circuit  courts  of  appeals  may  be  held  shall,  under 
the  direction  of  the  Attorney  General,  and  with  bis  approval,  provide  such 
rooms  in  the  public  buildings  of  the  United  States  as  may  be  necessary 
for  the  business  of  said  courts,  and  pay  all  incidental  expenses  of  said 
court,  including  criers,  bailiffs,  and  messengers:  Provided,  That  in  case 
proper  rooms  cannot  be  provided  in  such  buildings,  then  the  marshals, 
with  the  approval  of  the  Attorney  General,  may,  from  time  to  time,  lease 
such  rooms  as  may  be  necessary  for  such  courts.  (36  Stats.  1133.) 

§  128,  as  Amended  Act  of  Jan.  28,  1915,  c.  22.  The  circuit  court  of 
appeals  shall  exercise  appellate  jurisdiction  to  review  by  appeal  or  writ 
of  error  final  decisions  in  the  district  courts,  including  the  United  StateS 
district  court  for  Hawaii  and  the  United  States  district  court  for  Porto 
Rico,  in  all  cases  other  than  those  in  which  appeals  and  writs  of  error 
may  be  taken  direct  to  the  Supreme  Court,  as  provided  in  section  two 
hundred  and  thirty-eight,  unless  otherwise  provided  by  law ;  and,  except 
as  provided  in  sections  two  hundred  and  thirty-nine  and  two  hundred 
and  forty,  the  judgments  and  decrees  of  the  circuit  court  of  appeals  shall 
be  final  in  all  cases  in  which  the  jurisdiction  is  dependent  entirely  upon 
the  opposite  parties  to  the  suit  or  controversy  being  aliens  and  citizens 
of  the  United  States  or  citizens  of  different  states;  also  in  all  cases  arising 
under  the  patent  laws,  under  the  ^rade-mark  laws,  under  the  copyright 
laws,  under  the  revenue  laws,  and  under  the  criminal  laws,  and  in  all 
admiralty  cases.  (38  Stats.  803.) 

§  129.  Where  upon  a  hearing  in  equity  in  a  district  court,  or  by  a 
judge  thereof  in  vacation,  an  injunction  shall  be  granted,  continued,  re- 
fused, or  dissolved  by  an  interlocutory  order  or  decree,  or  an  application 
to  dissolve  an  injunction  shall  be  refused,  or  an  interlocutory  order  or 
decree  shall  be  made  appointing  a  receiver,  an  appeal  may  be  taken  from 
such  interlocutory  order  or  decree  granting,  continuing,  refusing,  dissolv- 
ing, or  refusing  to  dissolve,  an  injunction,  or  appointing  a  receiver,  to 
the  circuit  court  of  appeals,  notwithstanding  an  appeal  in  such  case  might, 
upon  final  decree  under  the  statutes  regulating  the  same,  be  taken  directly 
to  the  Supreme  Court:  Provided,  That  the  appeal  must  be  taken  within 
thirty  days  from  the  entry  of  such  order  or  decree,  and  it  shall  take 
precedence  in  the  appellate  court;  and  the  proceedings  in  other  resjwjcte 
in  the  court  below  shall  not  be  stayed  unless  otherwise  ordered  by  that 
court,  or  the  appellate  court,  or  a  judge  thereof,  during  the  pendency  of 
such  appeal:  Provided,  however,  That  the  court  below  may.  in  its  discre- 
tion, require  as  a  condition  of  the  appeal  an  additional  bond. 


746  APPENDIX. 

§  130.  The  circuit  courts  of  appeals  shall  have  the  appellate  and  super- 
visory jurisdiction  conferred  upon  them  by  the  act  entitled  "An  Act  to 
Establish  a  Uniform  System  of  Bankruptcy  throughout  the  United  States," 
approved  July  first,  eighteen  hundred  and  ninety-eight,  and  all  laws 
amendatory  thereof,  and  shall  exercise  the  same  in  the  manner  therein 
prescribed. 

§  131.  The  circuit  court  of  appeals  for  the  ninth  circuit  is  empowered 
to  hear  and  determine  writs  of  error  and  appeals  from  the  United  States 
court  for  China,  as  provided  in  the  act  entitled  "An  Act  Creating  a  United 
States  Court  for  China  and  Prescribing  the  Jurisdiction  thereof,"  approved 
June  thirtieth,  nineteen  hundred  and  six. 

§  132.  Any  judge  of  a  circuit  court  of  appeals,  in  respect  of  cases 
brought  or  to  be  brought  before  that  court,  shall  have  the  same  powers 
and  duties  as  to  allowances  of  appeals  and  writs  of  error,  and  the  condi- 
tions of  such  allowances,  as  by  law  belong  to  the  justices  or  judges  in 
respect  of  other  courts  of  the  United  States,  respectively. 

§133  (Re-enacting  §  15,  C.  C.  A.  Act  1891).  The  circuit  courts  of 
appeals,  in  cases  in  which  their  judgments  and  decrees  are  made  final  by 
this  title,  shall  have  appellate  jurisdiction,  by  writ  of  error  or  appeal,  to 
review  the  judgments,  orders,  and  decrees  of  the  supreme  courts  of  Arizona 
and  New  Mexico,  as  by  this  title  the/  may  have  to  review  the  judgments, 
orders,  and  decrees  of  the  district  courts;  and  for  that  purpose  said  terri- 
tories shall,  by  orders  of  the  Supreme  Court  of  the  United  States,  to  be 
made  from  time  to  time,  be  assigned  to  particular  circuits.  (36  Stats. 
1134.) 

This  section  is  superseded  by  reason  of  the  territories  of  Arizona  and  New 
Mexico  having  been  admitted  as  states,  by  proclamation  of  the  President 
and  acts  of  Congress,  all  of  which  are  cited  in  paragraphs  following  Judicial 
Code,  §§70  and  96,  respectively,  and  are  set  forth  in  the  title  "States." 

§  134.  In  all  cases  other  than  those  in  which  a  writ  of  error  or  appeal 
will  lie  direct  to  the  Supreme  Court  of  the  United  States  as  provided  in 
section  two  hundred  and  forty-seven,  in  which  the  amount  involved  or  the 
value  of  the  subject-matter  in  controversy  shall  exceed  five  hundred  dollars, 
and  in  all  criminal  cases,  writs  of  error  and  appeals  shall  lie  from  the 
district  court  for  Alaska  or  from  any  division  thereof,  to  the  circuit  court 
of  appeals  for  the  ninth  circuit,  and  ttie  judgments,  orders,  and  decrees 
of  said  court  shall  be  final  in  all  such  cases.  But  whenever  such  circuit 
court  of  appeals  may  desire  the  instruction  of  the  Supreme  Court  of  the 
United  States  upon  any  question  or  proposition  of  law  which  shall  have 


THE   JUDICIAL    CODE.  747 

arisen  in  any  such  case,  the  court  may  certify  such  question  or  proposition 
to  the  Supreme  Court,  and  thereupon  the  Supreme  Court  shall  give  its 
instruction  upon  the  question  or  proposition  certified  to  it,  and  its  instruc- 
tions shall  be  binding  upon  the  circuit  court  of  appeals. 

§  135.  All  appeals,  and  writs  of  error,  and  other  cases,  coming  from 
the  district  court  for  the  district  of  Alaska  to  the  circuit  court  of  appeals 
for  the  ninth  circuit,  shall  be  entered  upon  the  docket  and  heard  at  San 
Francisco,  California,  or  at  Portland,  Oregon,  or  at  Seattle,  Washington, 
as  the  trial  court  before  whom  the  case  was  tried  below  shall  fix  and 
determine:  Provided,  That  at  any  time  before  the  hearing  of  any  appeal, 
writ  of  error,  or  other  case,  the  parties  thereto,  through  their  respective 
attorneys,  may  stipulate  at  which  of  the  above-named  places  the  same  shall 
he  heard,  in  which  case  the  case  shall  be  remitted  to  and  entered  upon  the 
docket  at  the  place  so  stipulated  and  shall  be  heard  there. 


748 


APPENDIX. 


CHAPTER  SEVEN. 


THE  COURT  OF  CLAIMS. 


no. 

136.  Appointment,    oath,    and    salary 

of  judges. 

137.  Seal. 

138.  Session;   quorum. 

139.  Officers  of  the  court. 

140.  Salaries  of  officers. 

141.  Clerk's  bond. 

142.  Contingent  fund. 

143.  Reports  to  Congress;   copies  for 

departments,  etc. 

144.  Members     of     Congress    not    to 

practice  in  the  court. 

145.  Jurisdiction. 

Par.  1.  Claims      against      the 
United  States. 

2.  Set-offs. 

3.  Disbursing    officers. 

146.  Judgments   for   set-off    or   coun- 

ter-claims;  how  enforced. 

147.  Decree   on  accounts   of   disburs- 

ing officers. 

148.  Claims  referred  by  departments. 

149.  Procedure    in    cases    transmitted 

by  departments. 

150.  Judgment's   in  cases   transmitted 

by  departments;  how  paid. 

151.  Either  House   of   Congress   may 

refer  certain  claims  to  court. 

152.  Costs  may  be  allowed  prevailing 

party. 

153.  Claims   growing   out   of   treaties 

not  cognizable  therein. 

154.  Claims  pending  in   other  courts. 

155.  Aliens. 

156.  All  claims  to  be  filed  within  six 

years;  exceptions.  » 

157.  Rules    of   practice;    may    punish 

contempts. 

158.  Oaths  and   acknowledgments. 

159.  Petitions   and   verification. 

160.  Petition  dismissed,  when. 

161.  Burden    of    proof    and    evidence 

as  to  loyalty. 


SEC. 

162.  Claims      for     proceeds     arising 

from  sales  of  abandoned  prop- 
erty. 

163.  Commissioners     to     take     testi- 

mony. 

164.  Power  to  call  upon  departments 

for  information. 

165.  When  testimony  not  to  be  taken. 

166.  Examination  of  claimant. 

167.  Testimony;  where  taken. 

168.  Witnesses   before  commissioners. 

169.  Cross-examinations. 

170.  Witnesses;  how  sworn. 

171.  Fees,      of      commissioners,      by 

whom  paid. 

172.  Claims  forfeited  for  fraud. 

173.  Claims    under    act    of   June    16, 

1874. 

174.  New  trial   on   motion  of  claim- 

ant. 

175.  New  trial  on  motion  of  United 

States. 

176.  Cost  of  printing  record. 

177.  No  interest  on  claims. 

178.  Effect  of  payment  of  judgment. 

179.  Final  judgments  a  bar. 

180.  Debtors    to    the    United    States 

may  have  amount  due  ascer- 
tained. 

181.  Appeals. 

182.  Appeals  in  Indian  eases. 

183.  Attorney     General's     report     to 

Congress. 

184.  Loyalty  a  jurisdictional  fact  in 

certain  cases. 

185.  Attorney  General  to  appear  for 

the  defense. 

186.  Persons   not   to   be   excluded   as 

witnesses  on  account  of  color 
or  because  of  interest;  plain- 
tiff may  be  witness  for  govern- 
ment. 

187.  Reports  of  court  to  Congress. 


§136  (Re-enacting  §  1049,  Rev.  Stats.).  The  court  of  claims,  estab- 
lished by  the  act  of  February  twenty-fourth,  eighteen  hundred  and  fifty- 
five,  shall  be  continued.  It  shall  consist  of  a  chief  justice  and  four  judges, 
who  shall  be  appointed  by  the  President,  by  and  with  the  advice  and  con- 


THE   JUDICIAL   CODB.  749 

sent  of  the  Senate,  and  hold  their  offices  during  good  behavior.  Each  of 
them  shall  take  an  oath  to  support  the  Constitution  of  the  United  States, 
and  to  discharge  faithfully  the  duties  of  his  office.  The  chief  justice 
shall  be  entitled  to  receive  an  annual  salary  of  six  thousand  five  hundred 
dollars,  and  each  of  the  other  judges  an  annual  salary  of  six  thousand 
dollars,  payable  monthly,  from  the  Treasury.  (36  Stats.  1135;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  646;  2  U.  S.  Comp.  Stats.  1916,  §  1127.) 

§  137  (Re-enacting  §  1050,  Rev.  Stats.).  The  court  of  claims  shall  have 
a  seal,  with  such  device  as  it  may  order.  (5  Fed.  Stats.  Ann.,  p.  647; 
2  U.  S.  Comp.  Stats.  §  1128;  Taylor  v.  U.  S.,  45  Fed.  531.) 

§  138  (Re-enacting  §  1052,  Rev.  Stats.).  The  court  of  claims  shall  hold 
one  annual  session  at  the  city  of  Washington,  beginning  on  the  first  Mon- 
day in  December  and  continuing  as*long  as  may  be  necessary  for  the 
prompt  disposition  of  the  business  of  the  court.  Any  three  of  the  judges 
of  said  court  shall  constitute  a  quorum,  and  may  hold  a  court  for  the 
transaction  of  business:  Provided,  That  the  concurrence  of  three  judges 
shall  be  necessary  to  the  decision  of  any  case.  (36  Stats.  1136;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  647;  2  U.  S.  Comp.  Stats.  1916,  §1129;  Foster's 
Federal  Practice,  5th  ed.,  p.  2342.) 

§139  ( Re-enacting  §  1053,  Rev.  Stats.).  The  said  court  shall  appoint 
a  chief  clerk,  an  assistant  clerk,  if  deemed  necessary,  a  bailiff,  and  a  chief 
messenger.  The  clerks  shall  take  an  oath  for  the  faithful  discharge  of 
their  duties,  and  shall  be  under  the  direction  of  the  court  in  the  perform- 
ance'thereof ;  and  for  misconduct  or  incapacity  they  may  be  removed  by 
it  from  office;  but  the  court  shall  report  such  removals,  with  the  cause 
thereof,  to  Congress,  if  in  session,  or  if  not,  at  the  next  session.  The 
bailiff  shall  hold  his  office  for  a  term  of  four  years,  unless  sooner  removed 
by  the  court  for  cause.  (36  Stats.  1136 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  647; 
2  U.  S.  Comp.  Stats.  1916,  §1130;  Foster's  Federal  Practice,  5th  ed., 
p.  2300.) 

§  140  (Re-enacting  §  1054,  Rev.  Stats.).  The  salary  of  the  chief  clerk 
shall  be  three  thousand  five  hundred  dollars  a  year;  of  the  assistant  clerk 
two  thousand  five  hundred  dollars  a  year;  of  the  bailiff  one  thousand  five 
hundred  dollars  a  year,  and  of  the  chief  messenger  one  thousand  dollars 
a  year,  payable  monthly  from  the  Treasury.  (36  Stats.  1136.) 

§  141  (Re-enacting  §  1055,  Rev.  Stats.).  The  chief  clerk  shall  give  bond 
to  the  United  States  in  such  amount,  in  snch  form,  and  with  such  security 
as  shall  be  approved  by  the  Secretary  of  the  Treasury.  (36  Stats.  1136.) 


750  APPENDIX. 

§  142.  The  said  clerk  shall  have  authority  when  he  has  given  bond  as 
provided  in  the  preceding  section,  to  disburse,  under  the  direction  of  the 
court,  the  contingent  fund  which  may  from  time  to  time  be  appropriated 
for  its  use;  and  his  accounts  shall  be  settled  by  the  proper  accounting 
officers  of  the  Treasury  in  the  same  way  as  the  accounts  of  other  disbursing 
agents  of  the  government  are  settled.  (36  Stats.  1136;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  648;  2  U.  S.  Comp.  Stats.  1916,  §  1133;  Foster's  Federal  Prac- 
tice, 5th  ed.,  p.  2300.)  , 

§143  (Re-enacting  §  1057,  Rev.  Stats.).  On  the  first  day  of  every 
regular  session  of  Congress,  the  clerk  of  the  court  of  claims  shall  transmit 
to  Congress  a  full  and  complete  statement  of  all  the  judgments  rendered 
by  the  court  during  the  previous  year,  stating  the  amounts  thereof  and 
the  parties  in  whose  favor  they  were  ^rendered,  together  with  a  brief  synop- 
sis of  the  nature  of  the  claims  upon  which  they  were  rendered.  At  the 
end  of  every  term  of  the  court  he  shall  transmit  a  copy  of  its  decisions 
to  the  heads  of  departments;  to  the  Solicitor,  the  Comptroller,  and  the 
Auditors  of  the  Treasury;  to  the  Commissioner  of  the  General  Land  Office 
and  of  Indian  Affairs;  to  the  chiefs  of  bureaus,  and  to  other  officers 
charged  with  the  adjustment  of  claims  against  the  United  States.  (36 
Stats.  1136;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  648;  2  U.  S.  Comp.  Stats.  1916, 
§  1134.) 

§  144  (Re-enacting  §  1058,  Rev.  Stats.).  Whoever,  being  elected  or  ap- 
pointed a  Senator,  Member  of,  or  Delegate  to  Congress,  or  a  Resident 
Commissioner,  shall,  after  his  election  or  appointment,  and  either  before 
or  after  he  has  qualified,  and  during  his  continuation  in  office,  practice  in 
the  court  of  claims,  shall  be  fined  not  more  than  ten  thousand  dollars  and 
imprisoned  not  more  than  two  years;  and  shall,  moreover,  thereafter  be 
incapable  of  holding  any  office  of  honor,  trust,  or  profit  under  the  govern- 
ment of  the  United  States.  (36  Stats.  1136;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  649;  2  U.  S.  Comp.  Stats.  1916,  §  1135;  Foster's  Federal  Practice,  5th 
ed.,  p.  2329.) 

§  145  (Including  §§  1059,  1069,  Rev.  Stats.  As  to  jurisdiction.)  The 
court  of  claims  shall  have  jurisdiction  to  hear  and  determine  the  following 
matters : 

First.  All  claims  (except  for  pensions)  founded  upon  the  Constitution 
of  the  United  States  or  any  law  of  Congress,  upon  any  regulation  of  an 
Executive  Department,  upon  any  contract,  express  or  implied,  with  the 
government  of  the  United  States,  or  for  damages,  liquidated  or  unliqui- 
dated, in  cases  not  sounding  in  tort,  in  respect  of  which  claims  the  party 


THE  JUDICIAL   CODB.  751 

would  be  entitled  to  redress  against  the  United  States  either  in  a  eourt 
of  law,  equity,  or  admiralty  if  the  United  States  were  suable:  Provided, 
however,  That  nothing  in  this  section  shall  be  construed  as  giving  to  the 
said  court  jurisdiction  to  hear  and  determine  claims  growing  out  of  the 
late  Civil  War,  and  commonly  known  as  "war  claims,"  or  to  hear  and 
determine  other  claims  which,  prior  to  March  third,  eighteen  hundred  and 
eighty-seven,  had  been  rejected  or  reported  on  adversely  by  any  court, 
department,  or  commission  authorized  to  hear  and  determine  the  same. 

Second.  All  set-offs,  counterclaims,  claims  for  damages,  whether  liqui- 
dated or  unliquidated,  or  other  demands  whatsoever  on  the  part  of  the 
government  of  the  United  States  against  any  claimant  against  the  govern- 
ment in  said  court:  Provided,  That  no  suit  against  the  government  of  the 
United  States,  brought  by  any  officer  of  the  United  States  to  recover  fees 
for  services  alleged  to  have  been  performed  for  the  United  States,  shall 
be  allowed  under  this  chapter  until  an  account  for  said  fees  shall  have 
been  rendered  and  finally  acted  upon  as  required  by  law,  unless  the  proper 
accounting  officer  of  the  Treasury  fails  to  act  finally  thereon  within  sit 
months  after  the  account  is  received  in  said  office. 

Third.  The  claim  of  any  paymaster,  quartermaster,  commissary  of 
subsistence,  or  other  disbursing  officer  of  the  United  States,  or  of  his  - 
administrators  or  executors,  for  relief  from  responsibility  on  account  of 
loss  by  capture  or  otherwise,  while  in  the  line  of  his  duty,  of  government 
funds,  vouchers,  records,  or  papers  in  his  charge,  and  for  which  such 
officer  was  and  is  held  responsible.  (36  Stats.  1136;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  649;  2  U.  S.  Comp.  Stats.  1916,  §  1136;  Foster's  Federal  Prac- 
tice, 5th  ed.,  pp.  2301,  2305;  United  States  v.  Pitts  Co.,  193  Fed.  905,  114 
C.  C.  A.  119.) 

§146  (Re-enacting  §  1061,  Rev.  Stats.).  Upon  the  trial  of  any  cause 
in  which  any  set-off,  counter-claim,  claim  for  damages,  or  other  demand 
is  set  up  on  the  part  of  the  government  against  any  person  making  claim 
against  the  government  in  said  court,  the  court  shall  hear  and  determine 
such  claim  or  demand  both  for  and  against  the  government  and  claimant; 
and  if  upon  the  whole  case  it  finds  that  the  claimant  is  indebted  to  the 
government  it  shall  render  judgment  to  that  effect,  and  such  judgment 
shall  be  final,  with  the  right  of  appeal,  as  in  other  cases  provided  for  by 
law.  Any  transcript  of  such  judgment,  filed  in  the  clerk's  office  of  any 
district  court,  shall  be  entered  upon  the  records  thereof,  and  shall  thereby 
become  and  be  a  judgment  of  such  court  and  be  enforced  as  other  judg- 
ments in  such  court  are  enforced.  (36  Stats.  1137;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  660;  2  U.  S.  Comp.  Stats.  1916,  §  1137;  Foster's  Federal  Prac- 


752  APPENDIX. 

tice,  5th  ed.,  p.  2305.     In  general,  Wisconsin  Cent.  R.  R.  Co.  v.  United 
States,  164  U.  S.  190,  41  L.  Ed.  406,  17  Sup.  Ct.  45.) 

§  147  (Re-enacting  §  1062,  Rev.  Stats.).  Whenever  the  court  of  claims 
ascertains  the  facts  of  any  loss  by  any  paymaster,  quartermaster,  com- 
missary of  subsistence,  or  other  disbursing  officer,  in  the  cases  herein- 
before provided,  to  have  been  without  fault  or  negligence  on  the  part  of 
such  officer,  it  shall  make  a  decree  setting  forth  the  amount  thereof,  and 
upon  such  decree  the  proper  accounting  officers  of  the  Treasury  shall  allow 
to  such  officer  the  amount  so  decreed  as  a  credit  in  the  settlement  of  his 
accounts.  (36  Stats.  1137;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  661;  2  U.  S. 
Comp.  Stats.  1916,  §  1138;  Foster's  Federal  Practice,  5th  ed.,  p.  2306.  In 
general,  McClure  v.  United  States,  116  U.  S.  145,  29  L.  Ed.  572,  6  Sup. 
Ct.  321.) 

§  148  (Drawn  from  §  1063).  When  any  claim  or  matter  is  pending  in 
any  of  the  executive  departments  which  involves  controverted  questions 
of  fact  or  law,  the  head  of  such  department  may  transmit  the  same,  with 
the  vouchers,  papers,  documents,  and  proofs  pertaining  thereto,  to  the 
court  of  claims  and  the  same  shall  be  there  proceeded  in  under  such  rules 
as  the  court  may  adopt.  When  the  facts  and  conclusions  of  law  shall  have 
been  found,  the  court  shall  report  its  findings  to  the  department  by  which 
it  was  transmitted  for  its  guidance  and  action :  Provided,  however,  That 
if  it  shall  have  been  transmitted  with  the  consent  of  the  claimant,  or  if 
it  shall  appear  to  the  satisfaction  of  the  court  upon  the  facts  established, 
that  under  existing  laws  or  the  provisions  of  this  chapter  it  has  jurisdic- 
tion to  render  judgment  or  decree  thereon,  it  shall  proceed  to  do  so,  in 
the  latter  case  giving  to  either  party  such  further  opportunity  for  hearing 
as  in  its  judgment  justice  shall  require,  and  shall  report  its  findings  therein 
to  the  department  by  which  the  same  was  referred  to  said  court.  The 
Secretary  of  the  Treasury  may,  upon  the  certificate  of  any  auditor,  or  of 
the  Comptroller  of  the  Treasury,  direct  any  claim  or  matter,  of  which, 
by  reason  of  the  subject-matter  or  character,  the  said  court  might  under 
existing  laws,  take  jurisdiction  on  the  voluntary  action  of  the  claimant, 
to  be  transmitted,  with  all  the  vouchers,  papers,  documents  and  proofs 
pertaining  thereto,  to  the  said  court  for  trial  and  adjudication.  (36  Stats. 
1137;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  662;  2  U.  S.  Comp.  Stats.  1916,  §  1139. 
In  general,  U.  S.  v.  Barlow,  184  U.  S.  123,  46  L.  Ed,  463,  22  Sup.  Ct.  468.) 

§149  (Re-enacting  §  1064,  Rev.  Stats.).  All  cases  transmitted  by  the 
head  of  any  department,  or  upon  the  certificate  of  any  auditor,  or  of  the 
Comptroller  of  the  Treasury,  according  to  the  provisions  of  the  preceding 


THE    JUDICIAL    CODE.  753 

section,  shall  be  proceeded  in  as  other  cases  pending  in  the  court  of  claims, 
and  shall,  in  all  respects,  be  subject  to  the  same  rules  and  regulations. 
(36  Stats.  1138;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  664;  2  U.  8.  Comp.  Stats. 
1916,  §  1140.  Procedure  in  referred  cases,  United  States  v.  New  York, 
160  U.  S.  598,  40  L.  Ed.  551, 16  Sup.  Ct  402.) 

§  150  (Re-enacting  §  1065,  Rev.  Stats.).  The  amount  of  any  final  judg- 
ment or  decree  rendered  in  favor  of  the  claimant,  in  any  case  transmitted 
to  the  court  of  claims  under  the  two  preceding  sections,  shall  be  paid  out 
of  any  specific  appropriation  applicable  to  the  case,  if  any  such  there  be; 
and  where  no  such  appropriation  exists,  the  judgment  or  decree  shall  be 
paid  in  the  same  manner  as  other  judgments  of  the  said  court.  (36  Stats. 
1138;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  664;  2  U.  S.  Comp.  Stats.  1916,  §  1141; 
Foster's  Federal  Practice,  5th  ed.,  p.  2310.) 

§  151  (Re-enacting  Act,  March  3,  1887,  c.  359).  Whenever  any  bill, 
except  for  a  pension,  is  pending  in  either  House  of  Congress  providing 
for  the  payment  of  a  claim  against  the  United  States,  legal  or  equitable, 
or  for  a  grant,  gift,  or  bounty  to  any  person,  the  House  in  which  such 
bill  is  pending  may,  for  the  investigation  and  determination  of  facts,  refer 
the  same  to  the  court  of  claims,  which  shall  proceed  with  the  same  in 
accordance  with  such  rules  as  it  may  adopt  and  report  to  such  House  the 
facts  in  the  case  and  the  amount,  where  the  same  can  be  liquidated,  includ- 
ing any  facts  bearing  upon  the  question  whether  there  has  been  delay  or 
laches  in  presenting  such  claim  or  applying  for  such  grant,  gift,  or  bounty, 
and  any  facts  bearing  upon  the  question  whether  the  bar  of  any  statute 
of  limitations  should  be  removed  or  which  shall  be  claimed  to  excuse  the 
claimant  for  not  having  resorted  to  any  established  legal  remedy,  together 
with  such  conclusions  as  shall  be  sufficient  to  inform  Congress  of  the  nature 
and  character  of  the  demand,  either  as  a  claim,  legal  or  equitable,  or  as 
a  gratuity  against  the  United  States,  and  the  amount,  if  any,  legally  or 
equitably  due  from  the  United  States  to  the  claimant:  Provided,  however, 
That  if  it  shall  appear  to  the  satisfaction  of  the  court  upon  the  facts 
established,  that  under  existing  laws  or  the  provisions  of  this  chapter,  the 
subject-matter  of  the  bill  is  such  that  it  has  jurisdiction  to  render  judg- 
ment or  decree  thereon,  it  shall  proceed  to  do  so,  giving  to  either,  party 
such  further  opportunity  for  hearing  as  in  its  judgment  justice  slnill 
require,  and  it  shall  report  its  proceedings  therein  to  the  House  of  Con- 
gress by  which  the  same  was  referred  to  said  court.  (36  Stats.  113S;  5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  665;  2  U.  S.  Comp.  Stats.  1916,  §  1142;  Fos- 
ter's Federal  Practice,  5th  ed.,  p.  2312.) 

'-  Manual — 48  » 


754  APPENDIX. 

§  152  (Re-enacting  §  15  of  Act  of  March  3,  1889,  c.  359,  24  Stats.  503). 
If  the  government  of  the  United  States  shall  put  in  issue  the  right  of  the 
plaintiff  to  recover,  the  court  may,  in  its  discretion,  allow  costs  to  the 
prevailing  party  from  the  time  of  joining  such  issue.  Such  costs,  how- 
ever, shall  include  only  what  is  actually  incurred  for  witnesses,  and  for 
summoning  the  same,  and  fees  paid  to  the  clerk  of  the  court.  (36  Stats. 
1138;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  677;  2  U.  S.  Comp.  Stats.  1916,  §  1143; 
Foster's  Federal  Practice,  5th  ed.,  p.  2352.  Costs,  United  States  v.  Har- 
mon, 147  U.  S.  268,  37  L.  Ed,  164,  13  Sup.  Ct.  327.) 

§153  (Re-enacting  §  1066,  Rev.  Stats.).  The  jurisdiction  of  the  said 
court  shall  not  extend  to  any  claim  against  the  government  not  pending 
therein  on  December  first,  eighteen  hundred  and  sixty-two,  growing  out  of 
or  dependent  on  any  treaty  stipulation  entered  into  with  foreign  nations 
or  with  the  Indian  tribes.  (36  Stats.  1138;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  667;  2  U.  S.  Comp.  Stats.  1916,  §  1144;  Foster's  Federal  Practice,  5th 
ed.,  p.  2308.  In  general,  Pam-To-Pee  v.  United  States,  148  U.  S.  691,  37 
L.  Ed.  613,  13  Sup.  Ct.  742.)  '•' J 

§  154  (Re-enacting  §  1067,  Rev.  Stats.).  No  person  shall  file  or  prose- 
cute in  the  court  of  claims,  or  in  the  Supreme  Court  on  appeal  therefrom, 
any  claim  for  or  in  respect  to  which  he  or  any  assignee  of  his  has  pend- 
ing in  any  other  court  any  suit  or  process  against  any  person  who,  at  the 
time  when  the  cause  of  action  alleged  in  such  suit  or  process  arose,  was, 
in  respect  thereto,  acting  or  professing  to  act,  mediately  or  immediately, 
under  the  authority  of  the  United  States.  (36  Stats.  1138;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  667;  2  U.  S.  Comp.  Stats.  1916,  §  1145.  In  general, 
United  States  v.  Louisiana,  123  U.  S.  32,  31  L.  Ed.  69,  8  Sup.  Ct.  17.) 

§  155  (Re-enacting  §  1068,  Rev.  Stats.).  Aliens  who  are  citizens  or  sub- 
jects of  any  government  which  accords  to  citizens  of  the  United  States 
the  right  to  prosecute  claims  against  such  government  in  its  courts,  shall 
have  the  privilege  of  prosecuting  claims  against  the  United  States  in  the 
court  of  claims,  whereof  such  court,  by  reason  of  their  subject-matter  and 
character,  might  take  jurisdiction.  (36  Stats.  1139;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  668;  2  U.  S.  Comp.  Stats.  1916,  §  1146;  Foster's  Federal  Prac- 
tice, 5th  ed.,  p.  2309.  Aliens,  United  States  v.  Winchester  &  Potomac 
R.  R.  Co.,  163  U.  S.  244,  41  L.  Ed.  145,  16  Sup.  Ct.  993.) 

§  156  (Re-enacting  §  1069,  Rev.  Stats.).  Every  claim  against  the  United 
States  cognizable  by  the  court  of  claims  shall  be  forever  barred  unless  the 
petition  setting  forth  a  statement  thereof  is  filed  in  the  court,  or  transmitted 
to  it  by  the  Secretary  of  the  Senate  or  the  Clerk  of  the  House  of  Representa- 


THE  JUDICIAL   CODE.  755 

tives,  as  provided  by  law,  within  six  years  after  the  claim  first  accrues: 
Provided,  That  the  claims  of  married  women,  first  accrued  during  marriage, 
of  persons  under  the  age  of  twenty-one  years,  first  accrued  during  minority, 
and  of  idiots,  lunatics,  insane  persons,  and  persons  beyond  the  seas  at  the 
time  the  claim  accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the  peti- 
tion be  filed  in  the  court  or  transmitted,  as  aforesaid,  within  three  years 
after  the  disability  has  ceased ;  but  no  other  disability  than  those  enumerated 
shall  prevent  any  claim  from  being  barred,  nor  shall  any  of  the  said  dis- 
abilities operate  cumulatively.  (36  Stats.  1139;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  668;  2  U.  S.  Comp.  Stats.  1916,  §  1147;  Foster's  Federal  Practice,  5th 
ed.,  p.  2314.) 

§  157  (Re-enacting  §  1070,  Rev.  Stats.).  The  said  court  shall  have 
power  to  establish  rules  for  its  government  and  for  the  regulation  of  prac- 
tice therein,  and  it  may  punish  for  contempt  in  the  manner  prescribed  by 
the  common  law,  may  appoint  commissioners,  and  may  exercise  such  powers 
as  are  necessary  to  carry  into  effect  the  powers  granted  to  it  by  law.  (36 
Stats.  1139;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  671;  2  U.  S.  Comp.  Stats.  1916, 
§  1148.  Practice,  Intermingled  Cotton  Cases,  92  U.  S.  651,  23  L.  Ed.  756.) 

§  158  (Re-enacting  §  1071,  Rev.  Stats.).  The  judges  and  clerks  of  said 
court  may  administer  oaths  and  affirmations,  taking  acknowledgments  of 
instruments  in  writing,  and  give  certificates  of  the  same.  (36  Stats.  1139; 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  672;  2  U.  S.  Comp.  Stats.  1916,  §1149; 
Foster's  Federal  Practice,  5th  ed.,  p.  2312.) 

§  159  (Re-enacting  §  1072,  Rev.  Stats.).  The  claimant  shall  in  all  cases 
fully  set  forth  in  his  petition  the  claim,  the  action  thereon  in  Congress 
or  by  any  of  the  departments,  if  such  action  has  been  had,  what  persons 
are  owners  thereof  or  interested  therein,  when  and  upon  what  considera- 
tion such  persons  became  so  interested;  that  no  assignment  or  transfer  of 
said  claim  or  of  any  part  thereof  or  interest  therein  has  been  made,  except 
as  stated  in  the  petition,  that  said  claimant  is  justly  entitled  to  the  amount 
therein  claimed  from  the  United  States  after  allowing  all  just  credits  and 
off-sets;  that  the  claimant  and,  where  the  claim  has  been  assigned,  the 
original  and  every  prior  owner  thereof,  if  a  citizen,  has  at  all  times  borne 
true  allegiance  to  the  government  of  the  United  States,  and,  whether  a 
citizen  or  not,  has  not  in  any  way  voluntarily  aided,  abetted,  or  given 
encouragement  to  rebellion  against  the  said  government,  and  that  he  be- 
lieves the  facts  as  stated  in  the  said  petition  to  be  true.  The  said  petition 
shall  be  verified  by  the  affidavit  of  the  claimant,  his  agent  or  attorney. 
(36  Stats.  1139;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  672;  2  U.  S.  Comp.  Stats. 


756  APPENDIX. 

1916,  §  1150;  Foster's  Federal  Practice,  5th  ed.,  p.  2316.    In  general, 
United  States  v.  Louisiana,  123  U.  S.  32,  31  L.  Ed.  69,  8  Sup.  Ct.  17.) 

§  160  (Re-enacting  §  1073,  Rev.  Stats.).  The  said  allegations  as  to  true 
allegiance  and  voluntary  aiding,  abetting,  or  giving  encouragement  to 
rebellion  against  the  government  may  be  traversed  by  the  government, 
and  if  on  the  trial  such  issues  shall  be  decided  against  the  claimant,  his 
petition  shall  be  dismissed.  (36  Stats.  1139;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  673;  2  U.  S.  Comp.  Stats.  1916,  §  1151.) 

§  161  (Re-enacting  part  of  §  1074,  Rev.  Stats.).  Whenever  it  is  mate- 
rial in  any  claim  to  ascertain  whether  any  person  did  or  did  not  give  any 
aid  or 'comfort  to  forces  or  government  of  the  late  Confederate  States 
during  the  Civil  War,  the  claimant  asserting  the  loyalty  of  any  such  per- 
son to  the  United  States  during  such  Civil  War  shall  be  required  to 
prove  affirmatively  that  such  person  did,  during  said  Civil  War,  con- 
sistently adhere  to  the  United  States  and  did  give  no  aid  or  comfort  to 
persons  engaged  in  said  Confederate  service  in  said  Civil  War.  (36  Stats. 
1139;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  673;  2  U.  S.  Comp.  Stats.  1916, 
§  1152;  Foster's  Federal  Practice,  5th  ed.,  p.  2330.) 

§  162  (Drawn  from  §  1059,  Rev.  Stats.).  The  court  of  claims  shall 
have  jurisdiction  to  hear  and  determine  the  claims  of  those  whose  prop- 
erty was  taken  subsequent  to  June  the  first,  eighteen  hundred  and  sixty- 
five,  under  the  provisions  of  the  act  of  Congress  approved  March  twelfth, 
eighteen  hundred  and  sixty-three,  entitled  "An  Act  to  Provide  for  the 
Collection  of  Abandoned  Property  and  for  the  Prevention  of  Frauds  in 
Insurrectionary  Districts  within  the  United  States,"  and  acts  amend- 
atory thereof,  where  the  property  so  taken  was  sold  and  the  net  pro- 
ceeds thereof  was  placed  in  the  Treasury  of  the  United  States;  and  the 
Secretary  of  the  Treasury  shall  return  said  net  proceeds  to  the  owners 
thereof,  on  the  judgment  of  said  court,  and  full  jurisdiction  is  given  to 
said  court  to  adjudge  said  claims,  any  statutes  of  limitations  to  the  con- 
trary notwithstanding.  (36  Stats.  1139;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  673 ;  2  U.  S.  Comp.  Stats.  1916,  §  1153 ;  Foster's  Federal  Practice, 
5th  ed.,  p.  2312.  In  general,  Austin  v.  United  States,  155  U.  S.  417,  39 
L.  Ed.  206,  15  Sup.  Ct.  167.) 

§163  (Re-enacting  §  1075,  Rev.  Stats.).  The  court  of  claims  shall 
have  power  to  appoint  commissioners  to  take  testimony  to  be  used  in 
the  investigation  of  claims  which  come  before  it,  to  prescribe  the  fees 
which  they  shall  receive  for  their  services,  and  to  issue  commissions  for 
the  taking  of  such  testimony,  whether  taken  at  the  instance  of  the  claim- 


THE  JUDICIAL  C<        .  757 

ant  or  of  the  United  States.     (36  Stats.  1140;  5  Fed.  Stats.  Ann..  2d  rd., 
p.  674;  2  U.  S.  Comp.  Stats.  1916,  §  1154;  Foster's  Federal  Piu 
5th  ed.,  p.  2330.) 

§164  (Re-enacting  §  1076,  Rev.  Stats.).  The  said  court  shall  have 
power  to  call  upon  any  of  the  departments  for  any  information  or  papers 
it  may  deem  necessary,  and  shall  have  the  use  of  all  recorded  and  printed 
records  made  by  the  committees  of  each  House  of  Congress,  when  deemed 
necessary  in  the  prosecution  of  its  business.  But  the  head  of  any  de- 
partment may  refuse  and  omit  to  comply  with  any  call  for  information 
or  papers  when,  in  his  opinion,  such  compliance  would  be  injurious  to 
the  public  interest.  (36  Stats.  1140;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  674; 
2  U.  S.  Comp.  Stats.  1916,  §  1155.  In  general,  Oakes  v.  United  States, 
174  U.  S.  778,  43  L.  Ed.  1169,  19  Sup.  Ct.  864.) 

§  165  (Re-enacting  §  1077,  Rev.  Stats.).  When  it  appears  to  the  court 
in  any  case  that  the  facts  set  forth  in  the  petition  of  the  claimant  do 
not  furnish  any  ground  for  relief,  it  shall  not  authorize  the  taking  of 
any  testimony  therein.  (36  Stats.  1140;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  675;  2  U.  S.  Comp.  Stats.  1916,  §1156;  Foster's  Federal  Practice, 
5th  ed.,  p.  2330.) 

§166  (Re-enacting  §  1080,  Rev.  Stats.).  The  court  may,  at  the  in- 
stance of  the  attorney  or  solicitor  appearing  in  behall  of  the  United 
States,  make  an  order  in  any  case  pending  therein,  directing  any  claim- 
ant in  such  case  to  appear,  upon  reasonable  notice,  before  any  commis- 
sioner of  the  court  and  be  examined  on  oath  touching  any  or  all  matters 
pertaining  to  said  claim.  Such  examination  shall  be  reduced  to  writinir 
by  the  said  commissioner,  and  be  returned  to  and  filed  in  the  court,  and 
may,  at  the  discretion  of  the  attorney  or  solicitor  of  the  United  States 
appearing  in  the  case,  be  read  and  used  as  evidence  on  the  trial  thereof. 
And  if  any  claimant,  after  such  order  is  made  and  due  and  reasonable 
notice  thereof  is  given  to  him,  fails  to  appear,  or  refuses  to  testify  or 
answer  fully  as  to  all  matters  within  his  knowledge  material  to  the  issue, 
the  court  may,  in  its  discretion,  order  that  the  said  cause  shall  not  be 
brought  forward  for  trial  until  he  shall  have  fully  complied  with  the 
order  of  the  court  in  the  premises.  (36  Stats.  1140;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  675;  2  U.  S.  Comp.  Stats.  1916,  §  11.";  Foster's  Federal  Prac- 
tice, 5th  ed.,  2331.  In  general,  United  States  v.  Greuthouse,  166  U.  S. 
601,  41  L.  Ed.  1130,  17  Sup.  Ct.  701.) 

§  167  (Rc-oriactiiig  §  1081,  Rev.  Stats.).  Tlio  testimony  in  onsrs  pend- 
ing before  the  court  of  claims  shall  be  taken  in  the  county  where  the 


758  APPENDIX. 

witness  resides,  when  the  same  can  be  conveniently  done.  (36  Stats. 
1140;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  676;  2  U.  S.  Comp.  Stats.  1916,  §  1158; 
Foster's  Federal  Practice,  5th  ed.,  p.  2331.) 

§  168  (Re-enacting  §  1082,  Rev.  Stats.).  The  court  of  claims  may  issue 
subpoenas  to  require  the  attendance  of  witnesses  in  order  to  be  examined 
before  any  person  commissioned  to  take  testimony  therein.  Such  sub- 
poenas shall  have  the  same  force  as  if  issued  from  a  district  court,  and 
compliance  therewith  shall  be  compelled  under  such  rules  and  orders  as 
the  court  shall  establish.  (36  Stats.  1140;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  676;  2  U.  S.  Comp.  Stats.  1916,  §  1159;  Foster's  Federal  Practice, 
5th  ed.,  p.  2332.) 

§  169  (Re-enacting  §  1082,  Rev.  Stats.).  In  taking  testimony  to  be 
used  in  support  of  any  claim,  opportunity  shall  be  given  to  the  United 
States  to  file  interrogatories,  or  by  attorney  to  examine  witnesses,  under 
such  regulations  as  said  court  shall  prescribe;  and  like  opportunity  shall 
be  afforded  the  claimant,  in  cases  where  testimony  is  taken  on  behalf  of 
the  United  States,  under  like  regulations.  (36  Stats.  1140;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  676;  2  U.  S.  Comp.  Stats.  1916,  §  1160;  Foster's  Federal 
Practice,  5th  ed.,  pp.  2310,  2331.) 

§  170  (Re-enacting  §  1084,  Rev.  Stats.).  The  commissioner  taking 
testimony  to  be  used  in  the  court  of  claims  shall  administer  an  oath  or 
affirmation  to  the  witness  brought  before  him  for  examination.  (36  Stats. 
1140;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  677;  2  U.  S.  Comp.  Stats.  1916,  §  1161; 
Foster's  Federal  Practice,  5th  ed.,  p.  2331.) 

§  171  (Re-enacting  §  1085,  Rev.  Stats.).  When  testimony  is  taken  for 
the  claimant,  the  fees  of  the  commissioner  before  whom  it  is  taken,  and 
the  cost  of  the  commission  and  notice,  shall  be  paid  by  such  claimant; 
and  when  it  is  taken  at  the  instance  of  the  government,  such  fees  shall 
be  paid  out  of  the  contingent  fund  provided  for  the  court  of  claims,  or 
other  appropriation  made  by  Congress  for  that  purpose.  (36  Stats. 
1141;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  677;  2  U.  S.  Comp.  Stats.  1916, 
§  1162.) 

§172  (Re-enacting  §  1086,  Rev.  Stats.).  Any  person  who  corruptly 
practices  or  attempts  to  practice  any  fraud  against  the  United  States 
in  the  proof,  statement,  establishment,  or  allowance  of  any  claim  or  of 
any  part  of  any  claim  against  the  United  States  shall,  ipso  facto,  forfeit 
the  same  to  the  government;  and  it  shall  be  the  duty  of  the  court  of 
claims,  in  such  cases,  to  find  specifically  that  such  fraud  was  practiced  or 


THE  JUDICIAL  CODB.  759 

attempted  to  be  practiced,  and  thereupon  to  give  judgment  that  such 
claim  is  forfeited  to  the  government,  and  that  the  claimant  be  forever 
barred  from  prosecuting  the  same.  (36  Stats.  3141;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  677;  2  U.  S.  Comp.  Stats.  1916,  §  1163;  Foster's  Federal  Prac- 
tice, 5th  ed.,  p.  2349.) 

§  173  (Re-enacting  §  2  of  Act  of  April  30, 1878,  c.  77).  No  claim  shall 
be  allowed  by  the  accounting  officers  under  the  provisions  of  the  act  of 
Congress  approved  June  sixteen,  eighteen  hundred  and  seventy-four,  or 
by  the  court  of  claims,  or  by  Congress,  to  any  person  where  such  claim- 
ant, or  those  under  whom  he  claims,  shall  willfully,  knowingly,  and  with 
intent  to  defraud  the  United  States,  have  claimed  more  than  was  justly 
due  in  respect  of  such  claim,  or  presented  any  false  evidence  to  Congress, 
or  to  any  department  or  court,  in  support  thereof.  (36  Stats.  1141; 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  678;  2  U.  S.  Comp.  Stats.  1916,  §  1164.) 

§  174  (Re-enacting  §  1087,  Rev.  Stats.).  When  judgment  is  rendered 
against  any  claimant,  the  court  may  grant  a  new  trial  for  any  reason 
which,  by  the  rules  of  common  law  or  chancery  in  suits  between  indi- 
viduals, would  furnish  sufficient  ground  for  granting  a  new  trial. 
(36  Stats.  1141;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  678;  2  U.  S.  Comp.  Stats. 
1916,  §1165;  Foster's  Federal  Practice,  5th  ed.,  p.  2345;  Nance  v. 
United  States,  23  Ct.  Cl.  463;  Payan's  Motion,  15  Ct.  a.  56.) 

§175  (Re-enacting  §  1088,  Rev.  Stats.).  The  court  of  claims,  at  any 
time  while  any  claim  is  pending  before  it,  or  on  appeal  from  it,  or  within 
two  years  next  after  the  final  disposition  of  such  claim,  may,  on  motion, 
on  behalf  of  the  United  States,  grant  a  new  trial  and  stay  the  payment 
of  any  judgment  therein,  upon  such  evidence,  cumulative  or  otherwise, 
as  shall  satisfy  the  court  that  any  fraud,  wrong,  or  injustice  in  the  prem- 
ises has  been  done  to  the  United  States ;  but  until  an  order  is  made  stay- 
ing the  payment  of  a  judgment,  the  same  shall  be  payable  and  paid  as 
now  provided  by  law.  (36  Stats.  1141;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  678;  2  U.  S.  Comp.  Stats.  1916,  §1166;  Foster's  Federal  Practice, 
5th  ed.,  p.  2345.  In  general,  Landers  v.  United  States,  210  U.  S.  168,  42 
L.  Ed.  1007,  28  Sup.  Ct.  661;  Henry's  Motion,  15  Ct.  Cl.  166;  McCollum 
v.  United  States,  33  Ct.  Cl.  469 ;  United  States  v.  Young,  94  U.  S.  258, 
24  L.  Ed.  153;  United  States  v.  Crussell,  12  Wall.  175,  20  L.  Ed.  384; 
Young  v.  United  States,  95  U.  S.  641,  24  L.  Ed.  467.) 

§  176  (Drawn  from  Act  of  March  3,  1877,  c.  105).  There  shall  be 
taxed  against  the  losing  party  in  each  and  every  cause  pending  in  the 
court  of  claims  the  cost  of  printing  the  record  in  such  case,  which  shall 


760  APPENDIX. 

be  collected,  except  when  the  judgment  is  against  the  United  States,  by 
the  clerk  of  said  court  and  paid  into  the  Treasury  of  the  United  States. 
(36  Stats.  1141;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  680;  2  U.  S.  Comp.  Stats. 
1916,  §  1167;  Foster's  Federal  Practice,  5th  ed.,  p.  2352.) 

§177  (Re-enacting  §  1091,  Rev.  Stats.).  No  interest  shall  be  allowed 
on  any  claim  up  to  the  time  of  the  rendition  of  judgment  thereon  by  the 
court  of  claims,  unless  upon  a  contract  expressly  stipulating  for  the  pay- 
ment of  interest.  (36  Stats.  1141;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  680; 
2  U.  S.  Comp.  Stats.  1916,  §1168;  Foster's  Federal  Practice,  5th  ed., 
p.  2350.  In  general,  United  States  ex  rel.  Augerica  v.  Bayard,  127  U.  S. 
251,  32  L.  Ed.  159,  8  Sup.  Ct.  1156.) 

§178  (Re-enacting  §  1092,  Rev.  Stats.).  The  payment  of  the  amount 
due  by  any  judgment  of  the  court  of  claims,  and  of  any  interest  thereon 
allowed  by  law,  as  provided  by  law,  shall  be  a  full  discharge  to  the 
United  States  of  all  claim  and  demand  touching  any  of  the  matters  in- 
volved in  the  controversy.  (36  Stats.  1141;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  681;  2  U.  S.  Comp.  Stats.  1916,  §  1169.) 

§179  (Re-enacting  §  1092,  Rev.  Stats.).  Any  final  judgment  against 
the  claimant  on  any  claim  prosecuted  as  provided  in  this  chapter  shall 
forever  bar  any  further  claim  or  demand  against  the  United  States  aris- 
ing out  of  the  matters  involved  in  the  controversy.  (36  Stats.  1141; 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  681;  2  U.  S.  Comp.  Stats.  1916,  §1170; 
Foster's  Federal  Practice,  5th  ed.,  p.  2351.) 

§  180  (Drawn  from  §§  3  and  8  of  the  Tucker  Act  of  March  3,  1887, 
c.  359).  Whenever  any  person  shall  present  his  petition  to  the  court  of 
claims  alleging  that  he  is  or  has  been  indebted  to  the  United  States  as 
an  officer  or  agent  thereof,  or  by  virtue  of  any  contract  therewith,  or 
that  he  is  the  guarantor,  or  surety,  or  personal  representative  of  any 
officer  or  agent  or  contractor  so  indebted,  or  that  he  or  the  person  for 
whom  he  is  such  surety,  guarantor,  or  personal  representative  has  held 
any  office  or  agency  under  the  United  States,  or  entered  into  any  con- 
tract therewith,  under  which  it  may  be  or  has  been  claimed  that  an 
indebtedness  to  the  United  States  had  arisen  and  exists,  and  that  he  or 
the  person  he  represents  has  applied  to  the  proper  department  of  the 
government  requesting  that  the  account  of  such  office,  agency,  or  in- 
debtedness may  be  adjusted  and  settled,  and  that  three  years  have 
elapsed  from  the  date  of  such  application,  and  said  account  still  remains 
unsettled  and  unadjusted,  and  that  no  suit  upon  the  same  has  been 
brought  by  the  United  States,  said  court  shall,  due  notice  first  being 


THE  JUDICL\L  CODE.  761 

given  to  the  head  of  said  department  and  to  the  Attorney  General  of  the 
United  States,  proceed  to  hear  the  parties  and  to  ascertain  the  amount, 
if  any,  due  the  United  States  on  said  account.  The  Attorney  General 
sh»U  represent  the  United  States  at  the  hearing  of  said  cause.  The 
court  may  postpone  the  same  from  time  to  time  whenever  justice  shall 
require.  The  judgment  of  said  court  or  of  the  Supreme  Court  of  the 
United  States,  to  whicli  an  appeal  shall  lie,  as  in  other  cases,  as  to  the 
amount  due,  shall  be  binding  and  conclusive  upon  the  parties.  The  pay- 
ment of  such  amount  so  found  due  by  the  court  shall  discharge  such  obli- 
gation. An  action  shall  accrue  to  the  United  States  against  such  prin- 
cipal, or  surety,  or  representative  to  recover  the  amount  so  found  due, 
which  may  be  brought  at  any  time  within  three  years  after  the  final 
judgment  of  said  court;  and  unless  suit  shall  be  brought  within  said 
time,  such  claim  and  the  claim  on  the  original  indebtedness  shall  be  for- 
ever barred.  The  provisions  of  section  one  hundred  and  sixty-six  shall 
apply  to  cases  under  this  section.  (36  Stats.  1141;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  681;  2  U.  S.  Comp.  Stats.  1916,  §  1171;  Giering  v.  United 
States,  26  Ct.  Cl.  319.) 

§  181  (Drawn  from  §  9  of  Tucker  Act,  March  3,  1887,  o.  359).  The 
plaintiff  or  the  United  States,  in  any  suit  brought  under  the  provision 
of  the  section  last  preceding,  shall  have  the  same  right  of  appeal  as  is 
conferred  under  sections  two  hundred  and  forty-two  and  two  hundred 
and  forty-three;  and  such  right  shall  be  exercised  only  within  the  time 
and  in  the  manner  therein  prescribed.  (36  Stats.  1142;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  682;  2  U.  S.  Comp.  Stats.  1916,  §1172.  In  general, 
Miltenberger  v.  Logansport  Ry.  Co.,  106  U.  S.  286,  27  L.  Ed.  117,  1  Sup. 
Ct.  140.) 

§  182  (Re-enacting  §  10  of  Act  of  March  3, 1891,  c.  538,  26  Stats.  854). 
In  any  case  brought  in  the  court  of  claims  under  any  act  of  Congress 
by  which  that  court  is  authorized  to  render  a  judgment  or  decree  against 
the  United  States,  or  against  any  Indian  tribe  or  any  Indians,  or  against 
any  fund  held  in  trust  by  the  United  States  for  any  Indian  tribe  or  for 
any  Indians,  the  claimant,  or  the  United  States,  or  the  tribe  of  Indians, 
or  other  party  in  interest  shall  have  the  same  right  of  appeal  as  is  con-  A 
ferred  under  sections  two  hundred  and  forty-two  and  two  hundred  and  I 
forty-three;  and  such  right  shall  be  exercised  only  within  the  time  and 
in  the  manner  therein  prescribed.  (36  Stats.  1142;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  683;  2  U.  S.  Comp.  Stats.  1916,  §  1173.) 

§  183  (Re-enacting  §  11  of  Tucker  Act,  March  3,  1887,  c.  359).  The 
Attorney  General  shall  report  to  Congress,  at  the  beginning  of  each 


762  APPENDIX. 

regular  session,  the  suits  under  section  one  hundred  and  eighty,  in  which 
a  final  judgment  or  decree  has  been  rendered,  giving  the  date  of  each  and 
a  statement  of  the  costs  taxed  in  each  case.  (36  Stats.  1142;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  683;  2  U.  S.  Comp.  Stats.  1916,  §  1174.  In  gen- 
eral, Sena  v.  Amer.  Turquoise  Co.,  220  U.  S.  497,  55  L.  Ed.  559,  31  Sup. 
Ct.  488.) 

§  184  (Re-enacting  §  4  of  Bowman  Act  of  March  3,  1883.  c.  116).  In 
any  case  of  a  claim  for  supplies  or  stores  taken  by  or  furnished  to  any 
part  of  the  military  or  naval  forces  of  the  United  States  for  their  use 
during  the  late  Civil  War,  the  petition  shall  aver  that  the  person  who 
furnished  such  supplies  or  stores,  or  from  whom  such  supplies  or  stores 
were  taken,  did  not  give  any  aid  or  comfort  to  said  rebellion,  but  was 
throughout  that  war  loyal  to  the  government  of  the  United  States,  and 
the  fact  of  such  loyalty  shall  be  a  jurisdictional  fact ;  and  unless  the  said 
court  shall,  on  a  preliminary  inquiry,  find  that  the  person  who  furnished 
such  supplies  or  stores,  or  from  whom  the  same  were  taken  as  aforesaid, 
was  loyal  to  the  government  of  the  United  States  throughout  said  war, 
the  court  shall  not  have  jurisdiction  of  such  cause,  and  the  same  shall, 
without  further  proceedings,  be  dismissed.  (36  Stats.  1142;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  683;  2  U.  S.  Comp.  Stats.  1916,  §  1175;  Foster's  Federal 
Practice,  5th  ed.,  p.  2316.) 

§  185  (Drawn  from  §  5  of  the  Bowman  Act  of  March  3,  1883,  c.  116). 
The  Attorney  General,  or  his  assistants  under  his  direction,  shall  appear 
for  the  defense  and  protection  of  the  interests  of  the  United  States  in 
all  cases  which  may  be  transmitted  to  the  court  of  claims  under  the  pro- 
visions of  this  chapter,  with  the  same  power  to  interpose  counter-claims, 
offsets,  defenses  for  fraud  practiced  or  attempted  to  be  practiced  by 
claimants,  and  other  defenses,  in  like  manner  as  he  is  required  to  de- 
fend the  United  States  in  said  court.  (36  Stats.  1142;  5  Fed.  Stats. 
Ann..  2d  ed.,  p.  684;  2  U.  S.  Comp.  Stats.  1916,  §  1176.) 

§  186  (Combining  §  1087,  Rev.  Stats,  and  §  6  of  the  Bowman  Act  of 
March  3,  1883,  c.  116).  No  person  shall  be  excluded  as  a  witness  in 
the  court  of  claims  on  account  of  color,  because  he  or  she  is  a  party 
to  or  interested  in  the  cause  or  proceeding;  and  any  plaintiff  or  party 
in  interest  may  be  examined  as  a  witness  on  the  part  of  the  govern- 
ment. (36  Stats.  1143,  as  amended  by  Act  of  Feb.  15,  1912,  c.  28; 
37  Stats.  61;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  685;  2  U.  S.  Comp.  Stats. 
1916,  §  1177.) 


THE  JUDICIAL  COD1. 


763 


§  187  (Drawn  from  §  7  of  the  Bowman  Act  of  March  3,  1883,  c.  116). 
Reports  of  the  court  of  claims  to  Congress,  under  sections  one  hundred 
and  forty-eight  and  one  hundred  and  fifty-one,  if  not  finally  acted  upon 
during  the  session  at  which  they  are  reported,  shall  be  continued  from 
session  to  session  and  from  Congress  to  Congress  until  the  same  shall  be 
finally  acted  upon.  (36  Stats.  1143;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  685; 
2  U.  S.  Comp.  Stats.  1916,  §  1178.) 


CHAPTER  EIGHT. 

THE   COURT  OP  CUSTOMS   APPEALS. 


•ML 

195.  Final     decisions     of    board     of 

general  appraisers  to  be  re- 
viewed only  by  customs  court. 

196.  Other  courts  deprived   of  juris- 

diction in  customs  cases; 
pending  cases  excepted. 

197.  Transfer    to    customs    court    of 

pending  cases;  completion  of 
testimony. 

198.  Appeals  from  board  of  general 

appraisers;  time  within  which 
to  be  taken;  record  to  be 
transmitted  to  customs  court. 

199.  Records    filed    in    customs    court 

to  be  at  once  placed  on  cal- 
endar; calendar  to  be  called 
every  sixty  (lavs. 


SEC. 

188.  Court    of   customs   appeals;    ap- 

pointment and  salary  of 
judges;  quorum;  circuit  and 
district  judges  may  act  in 
place  of  judge  disqualified,  etc. 

189.  Court    to    be    always    open    for 

business;  terms  may  be  held 
in  any  circuit;  when  expenses 
of  judges  to  be  paid. 

190.  Marshal  of  the  court;    appoint- 

ment, salary,  and  duties. 

191.  Clerk    of    the    court;     appoint- 

ment, salary,  and  duties. 

192.  Assistant      clerk,      stenographic 

clerks,  and  reporter;  appoint- 
ment, salary,  and  duties. 

193.  Rooms   for  holding  court   to  be 

provided;  bailiffs  and  messen- 
gers. 

194.  To  be  a  court  of  record;  to  pre- 

scribe form  and  style  of  seal, 
and  establish  rules  and  regu- 
lations; may  affirm,  modify, 
or  reverse  and  remand  case, 
etc. 

§  188  (Drawn  from  Act  Feb.  5,  1910,  c.  62,  36  Stats.  214).  There 
shall  be  a  United  States  court  of  customs  appeals,  which  shall  consist  of 
a  presiding  judge  and  four  associate  judges,  each  of  whom  shall  be 
appointed  by  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  and  shall  receive  a  salary  of  seven  thousand  dollars  a  year.  The 
presiding  judge  shall  be  so  designated  in  the  order  of  appointment  and 
in  the  commission  issued  to  him  by  the  President;  and  the  associate 
judges  shall  have  precedence  according  to  the  date  of  their  commissions. 
Any  three  members  of  said  court  shall  constitute  a  quorum,  and  the  con- 


764  APPENDIX. 

currence  of  three  members  shall  be  necessary  to  any  decision  thereof. 
In  case  of  a  vacancy  or  of  the  temporary  inability  or  disqualification, 
for  any  reason,  of  one  or  two  of  the  judges  of  said  court,  the  President 
may,  upon  the  request  of  the  presiding  judge  of  said  court,  designate 
any  qualified  United  States  circuit  or  district  judge  or  judges  to  act  in 
his  or  their  place ;  and  such  circuit  or  district  judges  shall  be  duly  quali- 
fied to  so  act.  (36  Stats.  1143;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  686;  2  U.  S. 
Comp.  Stats.  1916,  §1179;  Foster's  Federal  Practice,  5th  ed.,  p.  2330.) 

§  189  (Drawn  from  Act  Feb.  5,  1910,  c.  62,  36  Stats.  214).  The  said 
court  of  customs  appeals  shall  always  be  open  for  the  transaction  of 
business,  and  sessions  thereof  may,  in  the  discretion  of  the  court,  be 
held  in  the  several  judicial  circuits,  and  at  such  places  as  said  court  may 
from  time  to  time  designate.  Any  judge  who,  in  pursuance  of  the  pro- 
visions of  this  chapter,  shall  attend  a  session  of  said  court  at  any  place 
other  than  the  city  of  Washington,  shall  be  paid,  upon  his  written  and 
itemized  certificate,  by  the  marshal  of  the  district  in  which  the  court 
shall  be  held,  his  actual  and  necessary  expenses  incurred  for  travel  and 
attendance,  and  the  actual  and  necessary  expenses  of  one  stenographic 
clerk  who  may  accompany  him;  and  such  payments  shall  be  allowed  the 
marshal  in  the  settlement  of  his  accounts  with  the  United  States. 
(36  Stats.  1143;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  686;  2  U.  S.  Comp.  Stats. 
1916,  §  1180.) 

§  190  (Drawn  from  §  28  of  the  Tariff  Act  of  Aug.  5,  1909,  c.  6,  36 
Stats.  105).  Said  court  shall  have  the  services  of  a  marshal,  with  the 
same  duties  and  powers,  under  the  regulations  of  the  court,  as  are  now 
provided  for  the  marshal  of  the  Supreme  Court  of  the  United  States, 
so  far  as  the  same  may  be  applicable.  Said  services  within  the  District 
of  Columbia  shall  be  performed  by  a  marshal  to  be  appointed  by  and 
to  hold  office  during  the  pleasure  of  the  court,  who  shall  receive  a  salary 
of  three  thousand  dollars  per  annum.  Said  services  outside  of  the  Dis- 
trict of  Columbia  shall  be  performed  by  the  United  States  marshals  in 
and  for  the  districts  where  sessions  of  said  court  may  be  held;  and  to 
this  end  said  marshals  shall  be  the  marshals  of  said  court.  The  mar- 
shal of  said  court  for  the  District  of  Columbia,  is  authorized  to  purchase, 
under  the  direction  of  the  presiding  judge,  such  books,  periodicals,  and 
stationery,  as  may  be  necessary  for  the  use  of  said  court;  and  such  ex- 
penditures shall  be  allowed  and  paid  by  the  Secretary  of  the  Treasuiy 
upon  claim  duly  made  and  approved  by  said  presiding  judge.  (36  Stats. 
1144;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  686;  2  U.  S.  Comp.  Stats.  1916, 
§  1181.) 


THE  JUDICIAL  CODE. 

§  191  (Drawn  from  §  28  of  the  Tariff  Act  of  Aug.  5,  1909,  c.  6,  36 
Stats.  105).  The  court  shall  appoint  a  clerk,  whose  office  shall  be  in  the 
city  of  Washington,  District  of  Columbia,  and  who  shall  perform  and 
exercise  the  same  duties  and  powers  in  regard  to  all  matters  within  the 
jurisdiction  of  said  court  as  are  now  exercised  and  performed  by  the 
clerk  of  the  Supreme  Court  of  the  United  States,  so  far  as  the  same  may 
be  applicable.  The  salary  of  the  clerk  shall  be  three  thousand  five  hun- 
dred dollars  per  annum,  which  sum  shall  be  in  full  payment  for  all  ser- 
vice rendered  by  such  clerk;  and  all  fees  of  any  kind  whatever,  and  all 
costs,  shall  be  by  him  turned  into  the  United  States  Treasury.  Said 
clerk  shall  not  be  appointed  by  the  court  or  any  judge  thereof  as  a  com- 
missioner, master,  receiver,  or  referee.  The  costs  and  fees  in  the  said 
court  shall  be  fixed  and  established  by  said  court  in  a  table  of  fees  to 
be  adopted  and  approved  by  the  Supreme  Court  of  the  United  State* 
within  four  months  after  the  organization  of  said  court:  Provided,  That 
the  costs  and  fees  so  fixed  shall  not,  with  respect  to  any  item,  exceed 
the  costs  and  fees  charged  in  the  Supreme  Court  of  the  United  Static: 
and  the  same  shall  be  expended,  accounted  for,  and  paid  over  to  the 
Treasury  of  the  United  States.  (36  Stats.  1144;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  687;  2  U.  S.  Comp.  Stats.  1916,  §§  1181,  1182.) 

§  192  (Drawn  from  §  28  of  the  Tariff  Act  of  Aug.  5,  1909,  c.  6,  36 
Stats.  105).  In  addition  to  the  clerk,  the  court  may  appoint  an  assist- 
ant clerk  at  a  salary  of  two  thousand  dollars  per  annum,  five  steno- 
graphic clerks  at  a  salary  of  one  thousand  six  hundred  dollars  per  annum 
each,  one  stenographic  reporter  at  a  salary  of  two  thousand  five  hun- 
dred dollars  per  annum,  and  a  messenger  at  a  salary  of  eight  hundred 
and  forty  dollars  per  annum,  all  payable  in  equal  monthly  installments, 
and  all  of  whom,  including  the  clerk,  shall  hold  office  during  the  pleasure 
of  and  perform  such  duties  as  are  assigned  them  by  the  court.  Suid 
reporter  shall  prepare  and  transmit  to  the  Secretary  of  the  Treasury 
once  a  week  in  time  for  publication  in  the  Treasury  Decisions  copit 
all  decisions  rendered  to  that  date  by  said  court,  and  prepare  and  trans- 
mit, under  the  direction  of  said  court,  at  least  once  a  year,  report 
said  decisions  rendered  to  that  date,  constituting  a  volume,  which  shall 
be  printed  by  the  Treasury  Department  in  such  numbers  and  distributed 
or  sold  in  such  manner  as  the  Secretary  of  the  Treasury  shall  din  t. 
(36  Stats.  1144;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  687;  2  U.  S.  Comp.  Stnt*. 
1916,  §1183.) 

§  193  (Drawn  from  §  8  of  the  Tariff  Act  of  Aug.  5,  1909,  c.  6,  36 
Stats.  105).  The  marshal  of  said  court  for  the  District  of  Columbia 


766  APPENDIX. 

and  the  marshals  of  the  several  districts  in  which  said  court  of  customs 
appeals  may  be  held  shall,  under  the  direction  of  the  Attorney  General, 
and  with  his  approval,  provide  such  rooms  in  the  public  buildings  of  the 
United  States  as  may  be  necessary  for  said  court :  Provided,  That  in  case 
proper  rooms  cannot  be  provided  in  such  buildings,  then  the  said  mar- 
shals, with  the  approval  of  the  Attorney  General,  may,  from  time  to 
time,  lease  such  rooms  as  may  be  necessary  for  said  court.  The  bailiffs 
and  messengers  of  said  court  shall  be  allowed  the  same  compensation 
for  their  respective  services  as  are  allowed  for  similar  services  in  the 
existing  district  courts.  In  no  case  shall  said  marshals  secure  other 
rooms  than  those  regularly  occupied  by  existing  district  courts,  or  other 
public  officers,  except  where  such  cannot,  by  reason  of  actual  occupancy 
or  use,  be  occupied  or  used  by  said  court  of  customs  appeals.  (36  Stats. 
1144;  5  Fed.  Stats.  Ann.,,  2d  ed.,  p.  688;  2  U.  S.  Comp.  Stats.  1916, 
§  1184.) 

§  194  (Drawn  from  §  8  of  the  Tariff  Act  of  Aug.  5,  1909,  c.  6,  36 
Stats.  105).  The  said'  court  of  customs  appeals  shall  be  a  court  of 
record,  with  jurisdiction  as  in  this  chapter  established  and  limited.  It 
shall  prescribe  the  form  and  style  of  its  seal,  and  the  form  of  its  writs 
and  other  process  and  procedure,  and  exercise  such  powers  conferred  by 
law  as  may  be  conformable  and  necessary  to  the  exercise  of  its  juris- 
diction. It  shall  have  power  to  establish  all  rules  and  regulations  for 
the  conduct  of  the  business  of  the  court,  and  as  may  be  needful  for  the 
uniformity  of  decisions  within  its  jurisdiction  as  conferred  by  law.  It 
shall  have  power  to  review  any  decision  or  matter  within  its  jurisdic- 
tion, and  may  affirm,  modify,  or  reverse  the  same  and  remand  the  case 
with  such  orders  as  may  seem  to  it  proper  in  the  premises,  which  shall 
be  executed  accordingly.  (36  Stats.  1144;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  688;  2  U.  S.  Comp.  Stats.  1916,  §  1185.) 

§195  (As  Amended  Act  of  Aug.  22,  1914,  c.  267).  That  the  Court 
of  Customs  Appeals  established  by  this  chapter  shall  exercise  exclusive 
appellate  jurisdiction  to  review  by  appeal,  as  herein  provided,  final  deci- 
sions by  a  board  of  general  appraisers  in  all  cases  as  to  the  construction 
of  the  law  and  the  facts  respecting  the  classification  of  merchandise  and 
the  rate  of  duty  imposed  thereon  under  such  classifications,  and  the  fees 
and  charges  connected  therewith,  and  all  appealable  questions  as  to  the 
jurisdiction  of  said  board,  and  all  appealable  questions  as  to  the  laws 
and  regulations  governing  the  collection  of  the  customs  revenues;  and 
the  judgments  and  decrees  of  said  Court  of  Customs  Appeals  shall  be 
final  in  all  such  cases;  Provided,  however.  That  in  any  case  in  which 


THE  JUDICIAL  CODE.  767 

the  judgment  or  decree  of  the  Court  of  Customs  Appeals  is  made  final 
by  the  provisions  of  this  title,  it  shall  be  competent  for  the  Supremo 
Court,  upon  the  petition  of  either  party,  filed  within  sixty  days  next 
after  the  issue  by  the  Court  of  Customs  Appeals  of  its  mandate  upon 
decision,  in  any  case  in  which  there  is  drawn  in  question  the  construc- 
tion of  the  Constitution  of  the  United  States,  or  any  part  thereof,  or 
of  any  treaty  made  pursuant  thereto,  or  in  any  other  case  when  the 
Attorney  General  of  the  United  States  shall,  before  the  decision  of  the 
Court  of  Customs  Appeals  is  rendered,  file  with  the  court  a  certificate 
to  the  effect  that  the  case  is  of  such  importance  as  to  render  expedient 
its  review  by  the  Supreme  Court,  to  require  by  certiorari  or  otherwise, 
such  case  to  be  certified  to  the  Supreme  Court  for  its  review  and  deter- 
mination, with  the  same  power  and  authority  in  the  case  as  if  it  had 
been  carried  by  appeal  or  writ  of  error  to  the  Supreme  Court;  And  pro- 
vided further,  That  this  Act  shall  not  only  apply  to  any  case  involving  only 
the  construction  of  section  one,  or  any  portion  thereof,  of  an  Act  en- 
titled "An  Act  to  provide  revenue,  equalize  duties,  and  encourage  the 
industries  of  the  United  States,  and  for  other  purposes,"  approved 
August  fifth,  nineteen  hundred  and  nine,  nor  to  any  case  involving  the 
construction  of  section  two  of  an  Act  entitled  "An  Act  to  promote  recip-  . 
rocal  trade  relations  with  the  Dominion  of  Canada,  and  for  other  pur- 
poses," approved  July  twenty-sixth,  nineteen  hundred  and  eleven. 
(36  Stats.  1145;  38  Stats.  703;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  689;  2  U.  S. 
Comp.  Stats.  1916,  §  1186.) 

§  196  (Drawn  from  §  8  of  the  Tariff  Act  of  Aug.  5,  1909,  c.  6,  36 
Stats.  105).  After  the  organization  of  said  court,  no  appeal  shall  be 
taken  or  allowed  from  any  board  of  United  States  general  appraisers  to 
any  other  court,  and  no  appellate  jurisdiction  shall  thereafter  be  exer- 
cised or  allowed  by  any  other  courts  in  cases  decided  by  said  board  of 
United  States  general  appraisers;  but  all  appeals  allowed  by  law  from 
such  board  of  general  appraisers  shall  be  subject  to  review  only  in  the 
court  of  customs  appeals  hereby  established,  according  to  the  provisions 
of  this  chapter:  Provided,  That  nothing  in  this  chapter  shall  be  deemed 
to  deprive  the  Supreme  Court  of  the  United  States  of  jurisdiction  to 
hear  and  determine  all  customs  cases  which  Imvo  heretofore  been  cer- 
tified to  said  court  from  the  United  States  circuit  courts  of  appeals  on 
applications  for  writs  of  certiorari  or  otherwise,  nor  to  review  by  writ 
of  certiorari  any  customs  case  heretofore  decided  or  now  pending  :md 
hereafter  decided  by  any  circuit  court  of  appeals,  provided  application 
for  said  writ  be  made  within  six  months  after  August  fifth,  nineteen 
hundred  and  nine:  Provided,  further,  That  all  customs  cases  decided  by 


768  APPENDIX. 

a  circuit  or  district  court  of  the  United  States  or  a  court  of  a  territory 
of  the  United  States  prior  to  said  date  above  mentioned,  and  which  have 
not  been  removed  from  said  courts  by  appeal  or  writ  of  error,  and  all 
such  cases  theretofore  submitted  for  decision  in  said  courts  and  remain- 
ing undecided  may  be  reviewed  on  appeal  at  the  instance  of  Cither 
party  by  the  United  States  court  of  customs  appeals,  provided  such 
appeal  be  taken  within  one  year  from  the  date  of  the  entry  of  the  order, 
judgment,  or  decrees  sought  to  be  reviewed.  (36  Stats.  1145;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  690;  2  U.  S.  Comp.  Stats.  1916,  §  1187.) 

§197  (Drawn  f rom  §  28  of  the  Tariff  Act  of  Aug.  5,  1909,  c.  6,  36 
Stats.  105).  Immediately  upon  the  organization  of  the  court  of  customs 
appeals,  all  cases  within  the  jurisdiction  of  that  court  pending  and  not 
submitted  for  decision  in  any  of  the  United  States  circuit  courts  of  ap- 
peals, United  States  circuit,  territorial  or  district,  courts,  shall,  with  the 
record  and  samples  therein,  be  certified  by  said  courts  to  said  court  of 
customs  appeals  for  further  proceedings  in  accordance  herewith :  Provided, 
That  where  orders  for  the  taking  of  further  testimony  before  a  referee 
have  been  made  in  any  of  such  cases,  the  taking  of  such  testimony  shall 
be  completed  before  such  certification.  (36  Stats.  1145;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  691;  2  U.  S.  Comp.  Stats.  1916,  §  1188.) 

§  198  (Drawn  from  §  28  of  the  Tariff  Act  of  Aug.  5,  1909,  c.  6,  36  Stats. 
105).  If  the  importer,  owner, -consignee,  or  agent  of  any  imported  mer- 
chandise, or  the  collector  or  Secretary  of  the  Treasury,  shall  be  dissatis- 
fied with  the  decision  of  the  board  of  general  appraisers  as  to  the  con- 
struction of  the  law  and  the  facts  respecting  the  classification  of  such 
merchandise  and  the  rate  of  duty  imposed  thereon  under  such  classifica- 
tion, or  with  any  other  appealable  decision  of  said  board,  they,  or  either 
of  them,  may,  within  sixty  days  next  after  the  entry  'of  such  decree  or 
judgment,  and  not  afterwards,  apply  to  the  court  of  customs  appeals  for 
a  review  of  the  questions  of  law  and  fact  involved  in  such  decision :  Pro- 
vided, That  in  Alaska  and  in  the  insular  and  other  outside  possessions  of 
the  United  States  ninety  days  shall  be  allowed  for  making  such  applica- 
tion to  the  court  of  customs  appeals.  Such  application  shall  b^e  made  by 
filing  in  the  office  of  the  clerk  of  said  court  a  concise  statement  of  errors 
of  law  and  fact  complained  of;  and  a  copy  of  such  statement  shall  be 
served  on  the  collector,  or  on  the  importer,  owner,  consignee,  or.  agent,  as 
the  case  may  be.  Thereupon  the  court  shall  immediately  order  the  board 
of  general  appraisers  to  transmit  to  said  court  the  record  and  evidence 
taken  by  them,  together  with  the  certified  statement  of  the  facts  involved 
in  the  case  and  their  decision  thereon ;  and  all  the  evidence  taken  by  and 


THE  JUDICIAL  CODE.  769 

.  before  said  board  shall  be  competent  evidence  before  said  court  of  cu- 
'  appeals.  The  decision  of  said  court  of  customs  appeals  shall  be  final,  and 
such  cause  shall  be  remanded  to  said  board  of  general  appraisers  for  fur- 
ther proceedings  to  be  taken  in  pursuance  of  such  determination.  (36 
Stats.  1146;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  691;  2  U.  S.  Comp.  Stats.  1916, 
§  1189;  Foster's  Federal  Practice,  5th' ed.,  p.  2458.) 

§  199  (Drawn  from  §  28  of  the  Tariff  Act  of  Aug.  5, 1909,  c.  6,  36  Stats. 
105).  Immediately  upon  receipt  of  any  record  transmitted  to  said  court 
for  determination  the  clerk  thereof  shall  place  the  same  upon  the  calendar 
for  hearing  and  submission ;  and  such  calendar  shall  be  called  and  all  cases 
thereupon  submitted,  except  for  good  cause  shown,  at  least  once  every 
sixty  days:  Provided,  That  such  calendar  need  not  be  called  during  the 
months  of  July  and  August  of  any  year.  (36  Stats.  1146;  5  Fed.  Stats. 
.,  2d  ed.,  p.  698;  2  U.  S.  Comp.  Stats.  1916,  §  1190.) 


CHAPTER  NINE. 

THE  COMMERCE  COURT. 

The  commerce  court,  was  abolished  by  the  deficiency  appropriation  act 
of  October  22,  1913,  c.  32,  38  Stats.  219,  221.  The  jurisdiction  of  this  court 
was  transferred  to  the  various  district  courts.  The  chapter  is  retained  in 
our  Appendix  for  an  understanding  of  the  jurisdiction  so  transferred.  The 
portion  of  the  deficiency  bill  abolishing  the  commerce  court  is  as  follows: 

The  commerce  court,  created  and  established  by  the  act  entitled  "An 
Act  to  Create  a  Commerce  Court  and  to  Amend  the  Act  Entitled  'An  Act 
to  Regulate  Commerce,'  Approved  February  Fourth,  Eighteen  Hundred 
and  Eighty-Seven,  as  Heretofore  Amended,  and  for  Other  Purposes,"  ap- 
proved June  eighteenth,  nineteen  hundred  and  ten,  is  abolished  from  and 
after  December  thirty-first,  nineteen  hundred  and  thirteen,  and  the  juris- 
diction vested  in  said  commerce  court  by  said  act  is  transferred  to  and 
Bested  in  the  several  district  courts  of  the  United  States,  and  all  acts  or 
parts  of  acts  in  so  far  as  they  relate  to  the  establishment  of  the  comn 
court  are  repealed.  Nothing  herein  contained  shall  be  deemed  to  affect 
the  tenure  of  any  of  the  judges  now  acting  as  circuit  judges  by  appoint 
ment  under  the  terms  of  said  act,  but  such  judges  shall  continue  to  act 
under  assignment,  as  in  the  said  act  provided,  as  judges  of  the  district 
courts  and  circuit  courts  of  appeals;  and  in  the  event  of  and  on  the  death, 
resignation,  or  removal  from  office  of  any  of  such  judges,  his  <>tli. 
hereby  abolished  and  no  successor  to  him  shall  be  appointed.  (5  Fed. 
Stats'  Ann.,  2d  ed.,  p.  1108;  1  U.  S.  Comp.  Stats.  191 G,  §  992,  p.  831.) 

Manual — «f 


770  APPENDIX. 

The  venue  of  any  suit  hereafter  brought  to  enforce,  suspend,  or  set 
aside,  in  whole  or  in  part,  any  order  of  the  Interstate  Commerce  Commis- 
sion shall  be  in  the  judicial  district  wherein  is  the  residence  of  the  party 
or  any  of  the  parties  upon  whose  petition  the  order  was  made,  except  that 
where  the  order  does  not  relate  to  transportation  or  is  not  made  upon  the 
petition  of  any  party  the  venue  shall  be  in  the  district  where  the  matter 
complained  of  in  the  petition  before  the  Commission  arises,  and  except 
that  where  the  order  does  not  relate  either  to  transportation  or  to  a  matter 
so  complained  of  before  the  Commission  the  matter  covered  by  the  order 
shall  be  deemed  to  arise  in  the  district  where  one  of  the  petitioners  in 
court  has  either  its  principal  office  or  its  principal  operating  office.  In 
case  such  transportation  relates  to  a  through  shipment  the  term  "destina- 
tion" shall  be  construed  as  meaning  final  destination  of  such  shipment. 
(5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1108.) 

The  procedure  in  the  district  courts  in  respect  to  cases  of  which  juris- 
diction is  conferred  upon  them  by  this  act  shall  be  the  same  as  that  hereto- 
fore prevailing  in  the  commerce  court.  The  orders,  writs,  and  processes 
of  the  district  courts  may  in  these  cases  run,  be  served,  and  be  returnable 
anywhere  in  the  United  States;  and  the  right  of  appeal  from  the  district 
courts  in  such  cases  shall  be  the  same  as  the  right  of  appeal  heretofore 
prevailing  under  existing  law  from  the  commerce  court.  (5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  1108.) 

No  interlocutory  injunction  suspending  or  restraining  the  enforcement, 
operation,  or  execution  of,  or  setting  aside,  in  whole  or  in  part,  any  order 
made  or  entered  by  the  Interstate  Commerce  Commission  shall  be  issued  or 
granted  by  any  district  court  of  the  United  States,  or  by  any  judge  thereof, 
or  by  any  circuit  judge  acting  as  district  judge,  unless  the  application  for 
the  same  shall  be  presented  to  a  circuit  or  district  judge,  and  shall  be  heard 
and  determined  by  three  judges,  of  whom  at  least  one  shall  be  a  circuit 
judge,  and  unless  a  majority  of  said  three  judges  shall  concur  in  granting 
such  application.  When  such  application  as  aforesaid  is  presented  to  a 
judge  he  shall  immediately  call  to  his  assistance  to  hear  and  determine  the 
application  two  other  judges.  Said  application  shall  not  be  heard  or  deter- 
mined before  at  least  five  days'  notice  of  the  hearing  has  been  given  to 
the  Interstate  Commerce  Commission,  to  the  Attorney  General  of  the 
United  Stages,  and*  to  such  other  persons  as  may  be  defendants  in  the 
suit :  Provided,  That  in  cases  where  irreparable  damage  would  otherwise 
ensue  to  the  petitioner,  a  majority  of  said  three  judges  concurring,  may,, 
on  hearing,  after  not  less  than  three  days'  notice  to  the  Interstate  Com- 
merce Commission  and  the  Attorney  General,  allow  a  temporary  stay  or 
suspension,  in  whole  or  in  part,  of  the  operation  of  the  order  of  the  In- 
terstate Commerce  Commission  for  not  more  than  sixty  days  from  the 


THE  JUDICIAL  CODE.  771 

date  of  the  order  of  said  judges  pending  the  application  for  the  order  or 
injunction,  in  which  case  the  said  order  shall  contain  a  specific  finding, 
based  upon  evidence  submitted  to  the  judges  making  the  order  ar.d  iden- 
tified by  reference  thereto,  that  such  irreparable  damage  would  result  to 
the  petitioner  and  specifying  the  nature  of  the  damage.  The  said  judges 
may,  at  the  time  of  hearing  such  application,  upon  a  like  finding,  continue 
the  temporary  stay  or  suspension  in  whole  or  in  part  until  decision  UJMMI 
the  application.  The  hearing  upon  such  application  for  an  interlocutory 
injunction  shall  be  given  precedence  and  shall  be  in  every  way  expedited 
and  be  assigned  for  a  hearing  at  the  earliest  practicable  day  after  the 
expiration  of  the  notice  hereinbefore  provided  for.  (5  Fed.  Stats.  Ann., 
2d  ed.,  p.  1112.) 

An  appeal  may  be  taken  direct  to  the  Supreme  Court  of  the  United  States 
from  the  order  granting  or  denying,  after  notice  and  hearing,  an  inter- 
locutory injunction  in  such  case,  if  such  appeal  be  taken  within  thirty  days 
after  the  order,  in  respect  to  which  complaint  is  made,  is  granted  or  refr, 
and  upon  the  final  hearing  of  any  suit  brought  to  suspend  or  set  aside,  in 
whole  or  in  part,  any  order  of  said  Commission  the  same  requirement  as  to 
judges  and  the  same  procedure  as  to  expedition  and  appeal  shall  apply.  A 
final  judgment  or  decree  of  the  district  court  may  be  reviewed  by  the  Su- 
preme Court  of  the  United  States  if  appeal  to  the  Supreme  Court  be  taken 
by  an  aggrieved  party  within  sixty  days  after  the  entry  of  such  final  judg- 
ment or  decree,  and  such  appeals  may  be  taken  in  like  manner  as  appeal- 
are  taken  under  existing  law  in  equity  cases.  And  in  such  case  the  notice 
required  shall  be  served  upon  the  defendants  in  the  case  and  upon  the 
Attorney  General  of  the  state.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1113.) 

All  cases  pending  in  the  commerce  court  at  the  date  of  the  pas^i^' 
of  this  act  shall  be  deemed  pending  in  and  be  transferred  forthwith  to 
said  district  courts  except  cases  which  may  previously  have  been  sub 
milled  to  that  court  for  final  decree,  and  the  latter  to  be  transferred 
to  the  district  courts  if  not  decided  by  the  commerce  court  before  De- 
cember first,  nineteen  hundred  and  thirteen,  and  all  cases  wherein  in- 
junctions or  other  orders  or  decrees,  mandatory  or  otherwise,  have  been 
directed  or  entered  prior  to  the  abolition  of  the  said  court  shall  be 
transferred  forthwith  to  said  district  courts,  which  shall  have  jurisdic- 
tion to  proceed  therewith  and  to  enforce  said  injunctions,  orders,  or  de- 
crees. Each  of  said  cases  and  all  the  records,  papers,  and  proceedings 
shall  be  transferred  to  the  district  court  wherein  it  might  have  INM-M  til«-.l 
at  the  time  it  was  filed  in  the  commerce  court  if  this  net  had  tlu>n  been  in 
effect;  and  if  it  might  have  been  filed  in  any  one  of  two  or  m.>n>  district 
courts  it  shall  be  transferred  to  that  one  of  said  district  courts  which  may 
be  designated  by  the  petitioner  or  petitioners  in  said  caw.  or.  upon  failure 


772 


APPENDIX. 


of  said  petitioners  to  act  in  the  premises  within  thirty  days  after  the  pas- 
sage of  this  act,  to  such  one  of  said  district  courts  as  may  be  designated 
by  the  judges  of  the  commerce  court.  The  judges  of  the  commerce  court 
shall  have  authority,  and  are  hereby  directed,  to  make  any  and  all  orders 
and  to  take  any  other  action  necessary  to  transfer  as  aforesaid  the  cases 
and  all  the  records,  papers,  and  proceedings  then  pending  in  the  com- 
merce court  to  said  district  courts.  All  administrative  books,  dockets,  files, 
and  all  papers  of  the  commerce  court  not  transferred  as  part  of  the  record 
of  any  particular  case  shall  be  lodged  in  the  Department  of  Justice.  All 
furniture,  carpets,  and  other  property  of  the  commerce  court  is  turned 
over  to  the  Department  of  Justice,  and  the  Attorney  General  is  authorized 
to  supply  such  portion  thereof  as  in  his  judgment  may  be  proper  and 
necessary  to  the  United  States  board  of  mediation  and  conciliation. 

Any  case  hereafter  remanded  from  the  Supreme  Court  which,  but  for 
the  passage  of  this  act,  would  have  been  remanded  to  the  commerce  court, 
shall  be  remanded  to  a  district  court,  designated  by  the  Supreme  Court, 
wherein  it  might  have  been  instituted  at  the  time  it  was  instituted  in  the 
commerce  court  if  this  act  had  then  been  in  effect,  and  thereafter  such 
district  court  shall  take  all  necessary  and  proper  proceedings  in  such  case 
in  accordance  with  law  and  such  mandate,  order,  or  decree  therein  as  may 
be  made  by  said  Supreme  Court.  (5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1116.) 

All  laws  or  parts  of  laws  inconsistent  with  the  foregoing  provisions 
relating  to  the  commerce  court,  are  repealed.  (5  Fed.  Stats.  Ann.,  2d  ed., 
p.  1117.) 


SEO. 

200.  Commerce  court  created;  judges 

of,  appointment  and  designa- 
tion; expense  allowance  to 
judges. 

201.  Additional    circuit    judges;    ap- 

pointment  and  assignment. 

202.  Officers     of     the     court;     clerk, 

marshal,  etc.;   salaries,  etc. 

203.  Court    to    be    always    open    for 

business;  sessions  of,  to  be 
held  in  Washington  and  else- 
where. 

204.  Marshals    to    provide   rooms    for 

holding  court  outside  of 
Washington. 

205.  Assignment   of   judges   to   other 

duty;  vacancies,  how  filled. 

206.  Powers    of    court    and    judges; 

writs,    process,   procedure,    etc. 

207.  Jurisdiction  of  the  court. 

208.  Suits  to  enjoin,   etc.,   orders  of 

Interstate    Commerce   Commis- 


sm 

sions  to  be  against  United 
States;  restraining  orders, 
when  granted  without  notice. 

209.  Jurisdiction    of    the    court,    how 

invoked;  practice  and  pro- 
cedure. 

210.  Final  judgments  and  decrees  re- 

viewable  in  Supreme  Court. 

211.  Suits     to     be     against     United 

States;  when  United  States 
may  intervene. 

212.  Attorney   General  to   control  all 

cases ;  Interstate  Commerce 
Commission  may  appear  as  of 
right;  parties  interested  may 
intervene,  etc. 

213.  Complainants    may    appear    and 

be  made  parties  to  case. 

214.  Pending  cases  to  be  transferred 

to  commerce  court;  exception; 
status  of  transferred  cases. 


THE  JUDICIAL  CODB.  773 

5  200  (Re-enacting  part  of  Act  of  June  18,  1910,  c.  309,  36  Stnts.  r>.19). 
There  shall  be  a  court  of  the  United  States,  to  be  known  as  the  conn. 
court,  which  shall  be  a  court  of  record,  and  shall  have  a  seal  of  such  fonn 
and  style  as  the  court  may  prescribe.  The  said  court  shall  be  comp 
of  five  judges,  to  be  from  time  to  time  designated  and  a^iuued  th« 
by  the  Chief  Justice  of  the  United  States,  from  among  the  circuit  judges 
of  the  United  States,  for  the  period  of  five  years,  except  that  in  the  first 
instance  the  court  shall  be  composed  of  the  five  additional  circuit  judges 
referred  to  in  the  next  succeeding  section,  who  shall  be  designated  by  the 
President  to  serve  for  one,  two,  three,  four,  and  five  years,  resj>ectively, 
in  order  that  the  period  of  designation  of  one  of  the  said  judges  shall 
expire  in  each  year  thereafter.  In  case  of  the  death,  resignation,  or 
termination  of  assignment  of  any  judge  so  designated,  the  Chief  Justice 
shall  designate  a  circuit  judge  to  fill  the  vacancy  so  caused1  and  to  serve 
during  the  unexpired  period  for  which  the  original  designation  was  made. 
After  the  year  nineteen  hundred  and  fourteen  no  circuit  judge  shall  be 
redesignated  to  serve  in  the  commerce  court  until  the  expiration  of  at  least 
one  year  after  the  expiration  of  the  period  of  his  last  previous  designation. 
The  judge  first  designated  for  the  five  year  period  shall  be  presiding  judge 
of  said  court,  and  thereafter  the  judge  senior  in  designation  shall  be  the 
presiding  judge.  The  associate  judges  shall  have  precedence  and  shall 
succeed  to  the  place  and  powers  of  the  presiding  judge  whenever  lie  may 
be  absent  or  incapable  of  acting  in  the  order  of  the  date  of  their  designa- 
tions. Four  of  said  judges  shall  constitute  a  quorum,  and  at  least  a 
majority  of  the  court  shall  concur  in  all  decisions.  Each  of  the  judges 
during  the  period  of  his  service  in  the  commerce  court  shall,  on  account 
of  the  regular  sessions  of  the  court  being  held  in  the  city  of  Washington, 
receive  in  addition  to  his  salary  as  circuit  judge  an  expense  allowance  at 
the  rate  of  one  thousand  five  hundred  dollars  per  annum.  (36  Stats. 
1146;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  698.  Superseded.) 

§  201  (Re-enacting  part  of  Act  of  June  18,  1910,  36  Stats.  539).  The 
five  additional  circuit  judges  authorized  by  the  act  to  create  a  commerce 
court,  and  for  other  purposes,  approved  June  eighteenth,  nineteen  hun- 
dred and  ten,  shall  hold  office  during  good  behavior,  and  from  time  to 
time  shall  be  designated  and  assigned  by  the  Chief  Justice  of  the  United 
States  for  service  in  the  district  court  of  any  district,  or  the  circuit  court 
of  appeals  for  any  circuit,  or  in  the  commerce  court,  and  when  so  d. 
nated  and  assigned  for  service  in  a  district  court  or  circuit  court  of  appeals 
shall  have  the  powers  and  jurisdiction  in  this  act  conferred  upon  a  circuit 
judge  in  his  circuit.  (36  Stats.  1140;  5  Fed,  Stats.  Ann1.,  2d  ed.,  p.  699. 
Partly  preserved.) 


774  APPENDIX. 

§  202  (Re-enacting  part  of  Act  of  June  18,  1910,  36  Stats.  539).  The 
court  shall  also  have  a  clerk  and  a  marshal,  with  the  same  duties  and 
powers,  so  far  as  they  may  be  appropriate  and  are  not  altered  by  rule 
of  the  court,  as  are  now  possessed  by  the  clerk  and  marshal,  respectively, 
of  the  Supreme  Court  of  the  United  States.  The  offices  of  the  clerk  and 
marshal  of  the  court  shall  be  in  the  city  of  Washington,  in  the  District 
of  Columbia.  The  judges  of  the  court  shall  appoint  the  clerk  and  mar- 
shal, and  may  also  appoint,  if  they  find  it  necessary,  a  deputy  clerk  and 
deputy  marshal;  and  such  clerk,  marshal,  deputy  clerk,  and  deputy  mar- 
shal, shall  hold  office  during  the  pleasure  of  the  court.  The  salary  of 
the  clerk  shall  be  four  thousand  dollars  per  annum;  the  salary  of  the 
marshal  three  thousand  dollars  per  annum;  the  salary  of  the  deputy  clerk 
two  thousand  five  hundred  dollars  pe*^annum;  and  the  salary  of  the  deputy 
marshal  .two  thousand  five  hundred  dollars  per  annum.  The  clei-k  and 
marshal  may,  with  the  approval  of  the  court,  employ  all  requisite  assist- 
ance. The  costs  and  fees  in  said  court  shall  be  established  by  the  court 
in  a  table  thereof,  approved  by  the  Supreme  Court  of  the  United  States, 
within  four  months  after  the  organization  of  the  court;  but  such  costs 
and  fees  shall  in  no  case  exceed  those  charged  in  the  Supreme  Court  of 
the  United  States,  and  shall  be  accounted  for  and  paid  into  the  Treasury 
of  the  United  States.  (36  Stats.  1147.) 

§  203  (Re-enacting  part  of  Act  of  June  18,  1910,  36  Stats.  539).  The 
commerce  court  shall  always  be  open  for  the  transaction  of  business. 
Its  regular  sessions  shall  be  held  in  the  city  of  Washington,  in  the  District 
of  Columbia;  but  the  powers  of  the  court  or  of  any  judge  thereof,  or 
of  the  clerk,  marshal,  deputy  clerk,  or  deputy  marshal,  may  be  exercised 
anywhere  in  the  United  States;  and  for  expedition  of  the  work  of  the 
court  and  the  avoidance  of  undue  expense  or  inconvenience  to  suitors  the 
court  shall  hold  sessions  in  different  parts  of  the  United  States  as  may 
be  found  desirable.  The  actual  and  necessary  expenses  of  the  judges, 
clerk,  marshal,  deputy  clerk,  and  deputy  marshal  of  the  court  incurred 
for  travel  and  attendance  elsewhere  than  in  the  city  of  Washington,  shall 
be  paid  upon  the  written  and  itemized  certificate  of  such  judge,  clerk, 
marshal,  deputy  clerk,  or  deputy  marshal,  by  the  marshal  of  the  court, 
and  shall  be  allowed  to  him  in  the  settlement  of  his  accounts  with  the 
United  States.  (36  Stats.  1148.) 

§  201  (Re-enacting  part  of  Act  of  June  18,  1910,  36  Stats.  539).  The 
United  States  marshals  of  the  several  districts  outside  of  the  city  of  Wash- 
ington in  which. the  commerce  court  may  hold  its  sessions  shall  provide, 
under  the  direction  and  with  the  approval  of  the  Attorney  General,  such 
rooms  in  the  public  buildings  of  the  United  States  as  may  be  necessary 


THE  JUDICIAL  CODE.  775 

for  the  court's  use;  but  in  case  proper  rooms  cannot  be  provided  in  such 
public  buildings,  said  marshals,  with  the  approval  of  the  Attorney  General, 
may  then  lease  from  time  to  time  other  necessary  rooms  for  the  court. 
(36  Stats.  1148.) 

i 

§  205  (Re-enacting  part  of  Act  of  June  18,  1910,  36  Stats.  539).  If, 
at  any  time,  the  business  of  the  commerce  court  does  not  require  the  ser- 
vices of  all  the  judges,  the  Chief  Justice  of  the  United  States  may,  by 
writing,  signed  by  him  and  filed  in  the  Department  of  Justice,  terminate 
the  assignment  of  any  of  the  judges,  or  temporarily  assign  him  for  service 
in  any  district  court  or  circuit  court  of  appeals.  In  cases  of  illnc 
other  disability  of  any  judge  assigned  to  the  commerce  court  the  Chief 
Justice  of  the  United  States  may  assign  any  other  circuit  judge  of  the 
United  States  to  act  in  his  place,  and  may  terminate  such  assignment  when 
the  exigency  therefor  shall  cease ;  and  any  circuit  judge  so  assigned  to  act 
in  place  of  such  judge  shall,  during  his  assignment,  exercise  all  the  powers 
and  perform  all  the  functions  of  such  judge.  (36  Stats.  1148.) 

§  206  (Re-enacting  part  of  Act  of  June  18,  1910,  36  Stats.  539).  In 
all  cases  within  its  jurisdiction  the  commerce  court,  and  each  of  the 
judges  assigned  thereto,  shall,  respectively,  have  and  may  exercise  any  and 
all  of  the  powers  of  a  district  court  of  the  United  States  and  of  the  judges 
of  said  court,  respectively,  so  far  as  the  same  may  be  appropriate  to  the 
effective  exercise  of  the  jurisdiction  hereby  conferred.  The  commerce 
court  may  issue  all  writs  and  process  appropriate  to  the  full  exercise  of 
its  jurisdiction  and  powers  and  may  prescribe  the  form  thereof.  It  may 
also,  from  time  to  time,  establish  such  rules  and  regulations  concerning 
pleading,  practice,  or  procedure  in  cases  or  matters  within  its  jurisdiction 
as  to  the  court  shall  seem  wise  and  proper.  Its  orders,  writs,  and  processes 
may  run,  be  served,  and  be  returnable  anywhere  in  the  United  States; 
and  the  marshal  and  deputy  marshal  of  said  court  and  also  the  United 
States  marshals  and  deputy  marshals  in  the  several  districts  of  the  United 
States  shall  have  like  powers  and  be  under  like  duties  to  act  for  and  in 
behalf  of  said  court  as  pertain  to  United  States  marshals  and  deputy  mar- 
shals generally  when  acting  under  like  conditions  concerning  suits  or 
matters  in  the  district  courts  of  the  United  States.  (36  Stats.  1148;  5 
Fed.  Stats.  Ann.,  2d  ed.,  p.  700.) 

§  207  (Re-enacting  part  of  Act  of  June  18,  1910,  36  Stats.  539).  The 
commerce  court  shall  have  the  jurisdiction  possessed  by  circuit  courts  of 
the  United  States  and  the  judges  thereof  immediately  prior  to  June  eigh- 
teenth, nineteen  hundred  and  ten,  over  all  cases  of  the  following  kinds : 


776  APPENDIX. 

First.  All  cases  for  the  enforcement,  otherwise  than  by  adjudication 
and  collection  of  a  forfeiture  or  penalty  or  by  infliction  of  criminal  pun- 
fshment,  of  any  order  of  the  Interstate  Commerce  Commission  other  than 
for  the  payment  of  money. 

Second.  Cases  brought  to  enjoin,  set  aside,  annul,  or  suspend  in  whole 
or  in  part  any  order  of  the  Interstate  Commerce  Commission. 

Third.  Such  cases  as  by  section  three  of  the  act  entitled  "An  Act  to 
Further  Regulate  Commerce  with  Foreign  Nations  and  Among  the  States," 
approved  February  nineteenth,  nineteen  hundred  and  three,  are  authorized 
to  be  maintained  in  a  circuit  court  of  the  United  States. 

Fourth.  All  such  mandamus  proceedings  as  under  the  provisions  of 
section  twenty  or  section  twenty-three  of  the  act  entitled  "An  Act  to  Regu- 
late Commerce,"  approved  February  fourth,  eighteen  hundred  and  eighty- 
seven,  as  amended,  are  authorized  to  be  maintained  in  a  circuit  court  of 
the  United  States. 

Nothing  contained  in  this  chapter  shall  be  construed  as  enlarging  the 
jurisdiction  now  possessed  by  the  circuit  courts  of  the  United  States  or  the 
judges  thereof,  that  is  hereby  transferred  to  and  vested  in  the  commerce 
court. 

The  jurisdiction  of  the  commerce  court  over  cases  of  the  foregoing 
classes  shall  be  exclusive;  but  this  chapter  shall  not  affect  the  jurisdiction 
possessed  by  any  circuit  or  district  court  of  the  United  States  over  cases 
or  proceedings  of  a  kind  not  within  the  above-enumerated  classes.  (36 
Stats.  1148;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1105.  Construction,  Proctor  & 
Gamble  Co.  v.  United  States,  188  Fed.  221.  Jurisdiction,  Proctor  &  Gamble 
v.  United  States,  225  U.  S.  2R2,  56  L.  Ed.  1091,  32  Sup.  Ct.  761.  Miscon- 
ception of  extent  of  powers  by  Commission,  Interstate  Comm.  v.  Clyde 
Steamship  Co.,  181  U.  S.  29,  45  L.  Ed.  729,  21  Sup.  Ct.  512.  Directing 
common  carriers,  Southern  Pac.  v.  Interstate  Com.  Com.,  200  U.  S.  536, 
50  L.  Ed.  594,  26  Sup.  Ct.  330.  Enforcing  order  of  Commission,  Farmers' 
Loan  &  Trust  Co.  v.  Northern  Pac.  Ry.  Co.,  83  Fed.  249.  Power  of  a 
court  of  equity,  Re  Central  Stock  Yards  Co.  v.  Louisville  &  N.  R.  Co.,  112 
Fed.  823.  Commerce  Commission,  an  administrative  body,  Western  N.  Y. 
&  P.  R.  Co.  v.  Penn.  Refining  Co.,  137  Fed.  343,  70  C.  C.  A.  23.  General 
powers,  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Interstate  Com.  Com.,  171  Fed. 
680.) 

§  208  (Re-enacting  part  Act  June  18,  1910,  36  Stats.  542).  Suits  to 
enjoin,  set  aside,  annul,  or  suspend  any  order  of  the  Interstate  Commerce 
Commission  shall  be  brought  in  the  commerce  court  against  the  United 
States.  The  pendency  of  such  suit  shall  not  of  itself  stay  or  suspend  the 
operation  of  the  order  of  the  Interstate  Commerce  Commission;  but  the 


TIIK  JUDICIAL  CODE.  777 

commerce  court,  in  its  discretion,  may  restrain  or  suspend,  in  whole  or 
in  part,  the  operation  of  the  Commission's  order  pending  the  final  hearint,' 
and  determination  of  the  suit.  No  order  or  injunction  so  restrainii 
suspending  an  order  of  the  Interstate  Commerce  Commission  shall  be  made 
by  the  commerce  court  otherwise  than  upon  notice  and  after  hearin-r, 
except  that  in  cases  where  irreparable  damage  would  otherwise  ensue  to 
the  petitioner,  said  court,  or  a  judge  thereof  may,  on  hearing  after  not 
less  than  three  days'  notice  to  the  Interstate  Commerce  Commission  and 
the  Attorney  General,  allow  a  temporary  stay  or  suspension  in  whole  or 
in  part  of  the  operation  of  the  order  of  the  Interstate  Commerce  Com- 
mission for  not  more  than  sixty  days  from  the  date  of  the  order  of  such 
court  or  judge,  pending  application  to  the  court  for  its  order  or  injunc- 
tion, in  which  case  the  said  order  shall  contain  a  specific  finding,  based 
upon  evidence  submitted  to  the  judge  making  the  order  and  identified  by 
reference  thereto,  that  such  irreparable  damage  would  result  to  the  i 
tioner  and  specifying  the  nature  of  the  damage.  The  court  may,  at  the 
time  of  hearing  such  application,  upon  a  like  finding,  continue  the  tem- 
porary stay  or  suspension  in  whole  or  in  part  until  its  decision  upon  the 
application.  (36  Stats.  1149;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  1110.) 

§  209  (Re-enacting  part  of  Act  of  June  18,  1910,  36  Stats.  539).  The 
jurisdiction  of  the  commerce  court  shall  be  invoked  by  filing  in  the  office 
of  the  clerk  of  the  court  a  written  petition  setting  forth  briefly  and 
succinctly  the  facts  constituting  the  petitioner's  cause  of  action,  and  speci- 
fying the  relief  sought.  A  copy  of  such  petition  shall  be  forthwith  served 
by  the  marshal  or  a  deputy  marshal  of  the  commerce  court  or  by  the 
proper  United  States  marshal  or  deputy  marshal  upon  every  defendant 
therein  named,  and  when  the  United  States  is  a  party  defendant,  the  ser- 
vice shall  be  made  by  filing  a  copy  of  said  petition  in  the  office  of  the 
Secretary  of  the  Interstate  Commerce  Commission  and  in  the  Department 
of  Justice.  Within  thirty  days  after  the  petition  is  served,  unless  that 
time  is  extended  by  order  of  the  court  or  a  judge  thereof,  an  answer  to 
the  petition  shall  be  filed  in  the  clerk's  office,  and  a  copy  thereof  mailed 
to  the  petitioner's  attorney,  which  answer  shall  briefly  and  categorically 
respond  to  the  allegations  of  the  petition.  N/>  replication  need  be  filed  to 
the  answer,  and  objections  to  the  sufficiency  of  the  petition  or  answer  as 
not  setting  forth  a  cause  of  action  or  defense  must  be  taken  at  tlu>  final 
hearing  or  by  motion  to  dismiss  the  petition  based  on  said  -rounds,  which 
motion  may  be  made  at  any  time  before  answer  is  filed.  In  case  no  an- 
shall  be  filed  as  provided  herein  the  petitioner  nun  apply  to  the  court  on 
notice  for  such  relief  as  may  be  proper  upon  the  facts  alleged  in  the  peti- 
tion. The  court  may,  by  rule,  prescribe  the  method  of  taking  evidence 


i 


778  APPENDIX. 

in  cases  pending  in  said  court;  and  may  prescribe  that  the  evidence  be 
taken  before  a  single  judge  of  the  court,  with  power  to  rule  upon  the 
admission  of  evidence.  Except  as  may  be  otherwise  provided  in  this 
chapter,  or  by  rule  of  the  court,  the  practice  and  procedure  in  the  com- 
merce court  shall  conform  as  nearly  as  may  be  to  that  in  like  cases  in  a 
district  court  of  the  United  States.  (36  Stats.  1149;  5  Fed.  Stats.  Ann., 
2d  ed.,  1109.  A  motion  to  dismiss  the  petition  can  be  made  under 
this  section.  Proctor  &  Gamble  Co.  v.  United  States,  118  Fed.  221; 
Southern  Pac.  Co.  v.  Interstate  Commerce  Commission,  188  Fed.  241.) 

§210  (Re-enacting  part  of  Act  of  June  18,  1910,  36  Stats.  539-542). 
A  final  judgment  or  decree  of  the*commerce  court  may  be  reviewed  by  the 
Supreme  Court  of  the  United  States  if  appeal  to  the  Supreme  Court  be 
taken  by  an  aggrieved  party  within  sixty  days  after  the  entry  of  said 
final  judgment  or  decree.  Such  appeal  may  be  taken  in  like  manner 
as  appeals  from  a  district  court  of  the  United  States  to  the  Supreme  Court, 
and  the  commerce  court  may  direct  the  original  record  to  be  transmitted 
on  appeal  instead  of  a  transcript  thereof.  The  Supreme  Court  may  affirm, 
reverse,  or  modify  the  final  judgment  or  decree  of  the  commerce  court 
as  the  case  may  require.  Appeal  to  the  Supreme  Court,  however,  shall  in 
no  case  supersede  or  stay  the  judgment  or  decree  of  the  commerce  court 
appealed  from,  unless  the  Supreme  Court  or  a  justice  thereof  shall  so 
direct;  and  appellant  shall  give  bond  in  such  form  and  of  such  amount 
as  the  Supreme  Court,  or  the  justice  of  that  court  allowing  the  stay,  may 
require.  An  appeal  may  also  be  taken  to  the  Supreme  Court  of  the 
United  States  from  an  interlocutory  order  or  decree  of  the  commerce  court 
granting  or  continuing  an  injunction  restraining  the  enforcement  of  an 
order  of  the  Interstate  Commerce  Commission,  provided  such  appeal  be 
taken  within  thirty  days  from  the  entry  of  such  order  or  decree.  Appeals 
to  the  Supreme  Court  under  this  section  shall  have  priority  in  hearing 
and  determination  over  all  other  causes  except  criminal  causes  in  that 
court.  (36  Stats.  1150;  5  Fed.  Stats.  Ann.,  p.  1114.  In  general,  United 
States  v.  Bait.  &  Ohio  R.  Co.,  225  U.  S.  306,  56  L.  Ed.  1100,  32  ,Sup.  Ct. 
817.) 

§211  (Re-enacting  part  of  Act  of' June  18,  1910,  36  Stats.  539,  542). 
All  cases  and  proceedings  in  the  commerce  court  which  but  for  thi^ 
chapter  would  be  brought  by  or  against  the  Interstate  Commerce  Commis- 
sion, shall  be  brought  by  or  against  the  United  States,  and  the  United 
States  may  intervene  in  any  case  or  proceeding  in  the  commerce  court 
whenever,  though  it  has  not  been  made  a  party,  public  interests  are  in- 
volved. (36  Stats.  1150;  5  Fed.  Stats.  Ann.,  p.  1109.) 


THE  JUDICIAL  CODB.  ,  , '.» 

§  212  (Re-enacting  part  Act  June  18, 1910;  36  Stats.  539).  The  Attor- 
ney General  shall  have  charge  and  control  of  the  interests  of  the  govern- 
ment in  all  cases  and  proceedings  in  the  commerce  court,  and  in  the 
Supreme  Court  of  the  United  States  upon  appeal  from  the  commerce 
court.  If  in  his  opinion  the  public  interest  requires  it,  he  may  retain 
and  employ  in  the  name  of  the  United  States,  within  the  appropriations 
from  time  to  time  made  by  the  Congress  for  such  purposes,  such  special 
attorneys  and  counselors  at  law  as  he  may  think  necessary  to  assist  in 
the  discharge  of  any  of  the  duties  incumbent  upon  him  and  his  subordinate 
attorneys;  and  the  Attorney  General  shall  stipulate  with  such  special 
attorneys  and  counsel  the  amount  of  their  compensation,  which  shall  not 
be  in  excess  of  the  sums  appropriated  therefor  by  Congress  for  such  pur- 
poses, and  shall  have  supervision  of  their  action :  Provided,  That  the  Inter- 
state Commerce  Commission  and  any  party  or  parties  in  interest  to  the 
proceeding  before  the  Commission,  in  which  an  order  or  requirement  is 
made,  may  appear  as  parties  thereto  of  their  own  motion  and  as  to  right, 
and  be  represented  by  their  counsel,  in  any  suit  wherein  is  involved  the 
validity  of  such  order  or  requirement  or  any  part  thereof,  and  the  interest 
of  such  party;  and  the  court  wherein  is  pending  such  suit  may  make  all 
such  rules  and  orders  as  to  such  appearances  and  representations,  the 
number  of  counsel,  and  all  matters  of  procedure,  and  otherwise,  as  to 
subserve  the  ends  of  justice  and  speed  the  determination  of  such  suits: 
Provided,  further,  That  communities,  associations,  corporations,  firms,  and 
individuals  who  are  interested  in  the  controversy  or  question  before  the 
Interstate  Commerce  Commission,  or  in  any  suit  which  may  be  brought 
by  anyone  under  the  provisions  of  this  chapter,  or  the  acts  of  which  it  is 
amendatory  or  which  are  amendatory  of  it,  relating  to  action  of  the  In  tor 
state  Commerce  Commission,  may  intervene  in  said  suit  or  proceedings  at 
any  time  after  the  institution  thereof;  and  the  Attorney  General  shall 
not  dispose  of  or  discontinue  said  suit  or  proceeding-  over  the  objection 
of  such  party  or  intervenor  aforesaid,  but  said  intervenor  or  intcrvenors 
may  prosecute,  defend,  or  continue  said  suit  or  proceeding  unaffected  by 
the  action  or  non-action  of  the  Attorney  General  therein.  (36  Stats. 
1150;  5  Fed.  Slats.  Ann.,  2d  ed.,  p.  1114.) 

§  213  (Re-enacting  part  Act  June  18,  1910;  36  Stats.  530.  r>43).  (Vn- 
plainants  before  the  Interstate  Commerce  Commission  interested  in  n 
shall  have  the  right  to  appear  and  be  made  parties  to  the  case  and  be 
represented  before  the  courts  by  counsel,  under  such  regulations  as  are 
now  permitted  in  similar  circumstances  under  the  rules  and  practice  of 
equity  courts  of  the  United  States.  (36  Stats.  1151 ;  5  Fed.  Stats.  Ann., 
2d  ed.,  p.  1115.) 


780  APPENDIX. 

§  214  (Re-enacting  part  Act  June  18,  1910;  36  Stats.  539,  543).  Until 
the  opening  of  the  commerce  court,  all  cases  and  proceedings  of  which 
from  that  time  the  commerce  court  is  hereby  given  exclusive  jurisdiction 
may  be  brought  in  the  same  courts  and  conducted  in  like  manner  and  with 
like  effect  as  is  now  provided  by  law;  and  if  any  such  case  or  proceeding 
shall  have  gone  to  final  judgment  or  decree  before  the  opening  of  the 
commerce  court,  appeal  may  be  taken  from  such  final  judgment  or  decree 
in  like  manner  and  with  like  effect  as  is  now  provided  by  law.  Any  such 
case  or  proceeding  within  the  jurisdiction  of  the  commerce  court  which 
may  have  been  begun  in  any  other  court  as  hereby  allowed,  before  the  said 
date,  shall  be  forthwith  transferred  to  the  commerce  court,  if  it  has  not 
yet  proceeded  to  final  judgment  or  decree  in  such  other  court  unless  it 
has  been  finally  submitted  for  the  decision  of  such  court,  in  which  case 
the  cause  shall  proceed  in  such  court  to  final  judgment  or  decree  and 
further  proceeding  thereafter,  and  appeal  may  be  taken  direct  to  the 
Supreme  Court;  and  if  remanded,  such  cause  may  be  sent  back  to  the 
court  from  which  the  appeal  was  taken  or  to  the  commerce  court  for 
further  proceeding  as  the  Supreme  Court  shall  direct.  All  previous  pro- 
ceedings in  such  transferred  case  shall  stand  and  operate  notwithstanding 
the  transfer,  subject  to  the  same  control  over  them  by  the  commerce  court 
and  to  the  same  right  of  subsequent  action  in  the  case  or  proceeding  as 
if  the  transferred  case  or  proceeding  had  been  originally  begun  in  the 
commerce  court.  The  clerk  of  the  court  from  which  any  case  or  proceed- 
ing is  so  transferred  to  the  commerce  court  shall  transmit  to  and  file  in  the 
commerce  court  the  originals  of  all  papers  filed  in  such  case  or  proceeding 
and  a  certified  transcript  of  all  record  entries  in  the  case  or  proceeding 
up  to  the  time  of  transfer.  (36  Stats.  1151.  See  Hooker  v.  Interstate 
Commerce  Commission,  188  Fed.  242.) 


THE  JUDICIAL  CODE. 


781 


CHAPTER  TEN. 

THE  SUPREME  COURT. 


SEO. 

215.  Number  of  justices. 

216.  Precedents  of  the  associate  jus- 

tices. 

217.  Vacancy  in  the   office  of  Chief 

Justice. 

218.  Salaries  of  justices. 

219.  Clerk,  marshal,  and  reporter. 

220.  The  clerk  to  give  bond. 

221.  Deputies  of  the  clerk, 

222.  Records  of  the  old  court  of  ap- 

peals. 

223.  Tables  of  fees. 

224.  Marshal  of  the  Supreme  Court. 

225.  Duties  of  the  reporter. 

226.  Reporter's     salary     and     allow- 

ances. 

227.  Distribution   of  reports  and   di- 

gests. 

228.  Additional  reports   and  digests; 

limitation  upon  cost;  esti- 
mates to  be  submitted  to  Con- 
gress annually. 

229.  Distribution      of     Federal     Re- 

porter, etc.,  and  Digests. 

230.  Terms. 

231.  Adjournment     for    want    of    a 

quorum. 

232.  Certain  orders  made  by  less  than 

quorum. 

233.  Original  disposition. 

234.  Writs   of   prohibition   and   man- 

damus. 

235.  Issues  of  fact. 

236.  Appellate  jurisdiction. 

237.  Writs  of  error  from  judgments 

and   decrees  of  state  courts. 

238.  Appeals     and     writs     of     error 

from  United  States  district 
courts. 


SEC. 

239.  Circuit    court    of    appeals    may 

certify  questions  to  Supreme 
Court  for  instructions. 

240.  Ccrtiorari    to    circuit    court    of 

appeals. 

241.  Appeals   and   writs   of  error   in 

other  cases. 

242.  Appeals  from  court  of  claims. 

243.  Time    and    manner    of    appeals 

from  the  court  of  claims. 

244.  Writs  of  error  and  appeals  from 

supreme  court  of,  and  Unite  I 
States  district  court  for,  Porto 
Rico.  •  • 

245.  Writs  of  error  and  appeals  from 

the  supreme  courts  of  Arizona 
and  New  Mexico. 

246.  Writs  of  error  and  appeals  from 

the  supreme  court  of   Hawaii. 

247.  Appeals  and  writs  of  error  from 

the  district  court  for  Alaska 
direct  to  Supreme  Court  in  cer- 
tain cases. 

248.  Appeals  and  writs  of  error  from 

the  Supreme  court  of  the  Phil- 
ippine Islands. 

249.  Appeals  and  writs  of  error  when 

a  territory  becomes  a  state. 

250.  Appeals  and  writs  of  error  from 

the  court  of  appeals  of  the 
District  of  Columbia. 

251.  Certiorari    to    court    of    appeals, 

District  of  Columbia. 

252.  Appellate  jurisdiction  under  the 

bankruptcy  act. 

253.  Precedence  of  writs  of  error  to 

state  courts. 

254.  Cost  of  printing  records. 

255.  Women     may     bo    admitted     to 

practice. 


§215  (Re-enacting  §  673,  Rev.  Stats.).  The  Supreme  Court  of  the 
United  States  shall  consist  of  a  Chief  Justice  of  the  United  States  and 
eight  associate  justices,  any  six  of  whom  shall  constitute  a  quorum. 
(36  Stats.  1152;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  701;  2  U.  S.  Comp.  Stats. 
1916,  §  1191;  Foster's  Federal  Practice,  5th  ed.,  p.  300.) 


782  APPENDIX. 

§  216  (Re-enacting  §  674,  Rev.  Stats.).  The  associate  justices  shall 
have  precedence  according  to  the  dates  of  their  commissions,  or,  when 
the  commissions  of  two  or  more  of  them  bear  the  same  date,  according 
to  their  ages.  (36  Stats.  1152;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  702;  2  U.  S. 
Comp.  Stats.  1916,  §  1192.) 

§  217  (Re-enacting  §  675,  Rev.  Stats.).  In  case  of  a  vacancy  in  the 
office  of  Chief  Justice,  or  of  his  inability  to  perform  the  duties  and 
powers  of  his  office,  they  shall  devolve  upon  the  associate  justice  who  is 
first  in  precedence,  until  such  disability  is  removed,  or  another  Chief 
Justice  is  appointed  and  duly  qualified.  This  provision  shall  apply  to 
eveiy  associate  justice  who  succeeds  to  the  office  of  Chief  Justice. 
(36  Stats.  1152;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  702;  2  U.  S.  Comp.  Stats. 
1916,  §1194.) 

§218  (Re-enacting  §676,  Rev.  Stats.).  The  Chief  Justice  of  the 
Supreme  Court  of  the  United  States  shall  receive  the  sum  of  fifteen 
thousand  dollars  a  year,  and  the  justices  thereof  shall  receive  the  sum 
of  fourteen  thousand  five  hundred  dollars  a  year  each,  to  be  paid 
monthly.  (36  Stats.  1152;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  702;  2  U.  S. 
Comp.  Stats,  1916,  §  1194.) 

§  219  (Re-enacting  §  677,  Rev.  Stats.).  The  Supreme  Court  shall 
have  power  to  appoint  a  clerk  and  a  marshal  for  said  court,  and  a  re- 
porter of  its  decisions.  (36  Stats.  1152;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  702;  2  U.  S.  Comp.  Stats.  1916,  §  1195.) 

§220  (Drawn  from  Act  of  Feb.  22,  1875,  c.  95).  The  clerk  of  the 
Supreme  Court  shall,  before  he  enters  upon  the  execution  of  his  office, 
give  bond,  with  sufficient  sureties,  to  be  approved  by  the  court,  to  the 
United  States,  in  the  sum  of  not  less  than  five  thousand  and  not  more 
than  twenty  thousand  dollars,  to  be  determined  and  regulated  by  the 
Attorney  General,  faithfully  to  discharge  the  duties  of  his  office,  and 
seasonably  to  record  the  decrees,  judgments,  and  determinations  of  the 
court.  The  Supreme  Court  may  at  any  time,  upon  the  motion  of  the 
Attorney  General,  to  be  made  upon  thirty  days'  notice,  require  a  new 
bond,  or  a  bond  for  an  increased  amount  within  the  limits  above  pre- 
scribed; and  the  failure  of  the  clerk  to  execute  the  same  shall  vacate 
his  office.  All  bonds  given  by  the  clerk  shall,  after  approval,  be  re- 
corded in  his  office,  and  copies  thereof  from  the  records,  certified  by  the 
clerk  under  seal  of  the  court,  shall  be  competent  evidence  in  any  court. 
The  original  bonds  shall  be  filed  in  the  Department  of  Justice.  (36 
Stats.  1152;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  702;  2  U.  S.  Comp.  Stats.  1916, 


THE  JUDICIAL  CODE.  783 

§  1196.     Bond  of  Clerk,  Howard  v.  U.  S.,  184  U.  S.  676,  46  L.  Ed,  754, 
22  gup.  Ct.  543.) 

§221  (Re-enacting  §678,  Rev.  Stats.).  One  or  more  deputies  of  the 
clerk  of  the  Supreme  Court  may  be  appointed  by  the  court  on  the  appli- 
cation of  the  clerk,  and  may  be  removed  at  the  pleasure  of  the  court. 
In  case  of  the  death  of  the  clerk,  his  deputy  or  deputies  shall,  unless 
removed,  continue  in  office  and  perform  the  duties  of  the  clerk  in  his 
name  until  a  clerk  is  appointed  and  qualified;  and  for  the  defaults  or 
misfeasances  in  office  of  any  such  deputy,  whether  in  the  lifetime  of  the 
clerk  or  after  his  death,  the  clerk,  and  his  estate,  and  the  sureties  on  his 
official  bond,  shall  be  liable;  and  his  executor  or  administrator  shall 
have  such  remedy  for  any  such  defaults  or  misfeasances  committed  after 
his  death  as  the  clerk  would  be  entitled  to  if  the  same  had  occurred  in  his 
lifetime.  (36  Stats.  1153;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  703;  2  U.  S. 
Comp.  Stats.  1916,  §  1197.) 

§222  (Re-enacting  §679,  Rev.  Stats.).  The  records  and  proceedings 
of  the  court  of  appeals,  appointed  previous  to  the  adoption  of  the 
present  Constitution,  shall  be  kept  in  the  office  of  the  clerk  of  the 
Supreme  Court,  who  shall  give  copies  thereof  to  any  person  requiring 
and  paying  for  them,  in  the  manner  provided  by  law  for  giving  copies 
of  the  records  and  proceedings  of  the  Supreme  Court;  and  such  copies 
shall  have  like  faith  and  credit  with  all  other  proceedings  of  said  court. 
(36  Stats.  1153.) 

§  223  (Re-enacting  part  Act  March  3,  1883,  c.  143,  22  Stats.  631). 
The  Supreme  Court  is  authorized  and  empowered  to  prepare  the  tables 
of  fees  to  be  charged  by  the  clerk  thereof.  (36  Stats.  1153.) 

§  224  (Re-enacting  §  680,  Rev.  Stats.).  The  marshal  is  entitled  to 
receive  a  salary  at  the  rate  of  four  thousand  five  hundred  dollars  a  year. 
He  shell  attend  the  court  at  its  sessions;  shall  serve  and  execute  all 
process  and  orders  issuing  from  it,  or  made  by  the  Chief  Justice  or  an 
associate  justice  in  pursuance  of  law ;  and  shall  take  charge  of  all  prop- 
erty of  the  United  States  used  by  the  court  or  its  members.  With  the 
approval  of  the  Chief  Justice  he  may  appoint  assistants  and  messengers 
to  attend  the  court,  with  the  compensation  allowed  to  officers  of  the 
House  of  Representatives  of  similar  grade.  (36  Stats.  1153;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  605;  2  U.  S.  Comp.  Stats.  1916,  §  1200.) 

§  225  (Re-enacting  §  681,  Rev.  Stats.).  The  reporter  shall  cause  the 
decisions  of  the  Supreme  Court  to  be  printed  and  published  within  eight 
months  after  they  are  made;  and  within  the  same  time  he  shall  deliver 


784  APPENDIX. 

three  hundred  copies  of  the  volumes  of  said  reports  to  the  Attorney 
General.  The  reporter  shall,  in  any  year  when  he  is  so  directed  by  the 
court,  cause  to  be  printed  and  published  a  second  volume  of  said  deci- 
sions, of  which  he  shall  deliver  a  like  number  of  copies  in  like  manner 
and  time.  (36  Stats.  1153.) 

§226  (Drawn  from  §862,  Eev.  Stats.).  The  reporter  shall  be  en- 
titled to  receive  from  the  Treasury  an  annual  salary  of  four  thousand 
five  hundred  dollars  when  his  report  of  said  decisions  constitutes  one 
volume  and  an  additional  sum  of  one  thousand  two  hundred  dollars 
when,  by  direction  of  the  court,  he  causes  to  be  printed  and  published 
in  any  year  a  second  volume;  and  said  reporter  shall  be  annually  en- 
titled to  clerk  hire  in  the  sum  of  one  thousand  two  hundred  dollars, 
and  to  office  rent,  stationery,  and  contingent  expenses  in  the  sum  of 
six  hundred  dollars;  Provided,  That  the  volumes  of  the  decisions  of  the 
court  heretofore  published  shall  be  furnished  by  the  reporter  to  the 
public  at  a  sum  not  exceeding  two  dollars  per  volume,  and  those  here- 
after published  at  a  sum  not  exceeding  one  dollar  and  seventy-five  cents 
per  volume;  and  the  number  of  volumes  now  required  to  be  delivered 
to  the  Attorney  General  shall  be  furnished  by  the  reporter  without  any 
charge  therefor.  Said  salary  and  compensation,  respectively,  shall  be 
paid  only  when  he  causes  such  decisions  to  be  printed,  published,  and 
delivered  within  the  time  and  in  the  manner  prescribed  by  law,  and  upon 
the  condition  that  the  volumes  of  said  reports  shall  be  sold  by  him  to 
the  public  for  a  price  not  exceeding  one  dollar  and  seventy-five  cents 
a  volume.  (36  Stats.  1153.) 

§  227  (Drawn  from  §  683,  Rev.  Stats.,  as  amended  Act  Feb.  12,  1889, 
c.  135).  The  Attorney  General  shall  distribute  copies  of  the  Supreme 
Court  reports,  as  follows:  To  the  President,  the  justices  of  the  Supreme 
Court,  the  judges  of  the  commerce  court,  the  judges  of  the  court  of  cus- 
toms appeals,  the  judges  of  the  circuit  courts  of  appeals,  the  judges  of 
the  district  courts,  the  judges  of  the  court  of  claims,  the  judges  of  the 
court  of  appeals  and  of  the  supreme  court  of  the  District  of  Columbia, 
the  judges  of  the  several  territorial  courts,  the  Secretary  of  State,  the 
Secretary  of  the  Treasury,  the  Secretary  of  War,  the  Secretary  of  the 
Navy,  the  Secretary  of  the  Interior,  the  Postmaster  General,  the  Attor- 
ney General,  the  Secretary  of  Agriculture,  the  Secretary  of  Commerce 
and  Labor,  the  Solicitor  General,  the  Assistant  to  the  Attorney  General, 
each  Assistant  Attorney  General,  each  United  States  district  attorney, 
each  Assistant  Secretary  of  each  Executive  Department,  the  Assistant 
Postmasters  General,  the  Secretary  of  the  Senate  for  the  use  of  the 


THE  JUDICIAL  CODE.  785 

Senate,  the  Clerk  of  the  House  of  Representatives  for  the  use  of  the 
House  of  Representatives,  the  governors  of  the  territories,  the  Solicitor 
for  the  Department  of  State,  the  Treasurer  of  the  United  States,  the 
Solicitor  of  the  Treasury,  the  Register  of  the  Treasury,  the  Comptroller 
of  the  Treasury,  the  Comptroller  of  the  Currency,  the  Commissioner  of 
Internal  Revenue,  the  Director  of  the  Mint,  each  of  the  six  Auditors  in 
the  Treasury  Department,  the  Judge  Advocate  General,  War  Depart- 
ment, the  Paymaster  General,  War  Department,  the  Judge  Advocate 
General,  Navy  Department,  the  Commissioner  of  Indian  Affairs,  the 
Commissioner  of  Pensions,  the  Commissioner  of  the  General  Land  Office, 
the  Commissioner  of  Patents,  the  Commissioner  of  Education,  the  Com- 
missioner of  Labor,  the  Commissioner  of  Navigation,  the  Commissioner 
of  Corporations,  the  Commissioner  General  of  Immigration,  the  Chief  of 
the  Bureau  of  Manufactures,  the  Director  of  the  Geological  Survey,  the 
Director  of  the  Census,  the  Forester,  Department  of  Agriculture,  the 
Purchasing  Agent,  Postoffice  Department,  the  Interstate  Commerce  Com- 
mission, the  Clerk  of  the  Supreme  Court  of  the  United  States,  the  Mar- 
shal of  the  Supreme  Court  of  the  United  States,  the  Attorney  for  the 
District  of  Columbia,  the  Naval  Academy  at  Annapolis,  the  Military 
Academy  at  West  Point,  and  the  heads  of  such  other  executive  offices  as 
may  be  provided  by  law,  of  equal  grade  with  any  of  said  offices,  each  one 
copy;  to  the  Law  Library  of  the  Supreme  Court,  twenty-five  copies; 
to  the  Law  Library  of  the  Department  of  the  Interior,  two  copies ;  to  the 
Law  Library  of  the  Department  of  Justice,  two  copies ;  to  the  Secretary 
of  the  Senate  for  the  use  of  the  committees  of  the  Senate,  twenty-five 
copies;  to  the  Clerk  of  the  House  of  Representatives  for  the  use  of  the 
committees  of  the  House,  thirty  copies;  to  the  Marshal  of  the  Supreme 
Court  of  the  United  States,  as  custodian  of  the  public  property  used  by  the 
court,  for  the  use  of  the  justices  thereof  in  the  conference  room,  robing 
room,  and  court  room,  three  copies ;  to  the  Secretary  of  War  for  the  use  of 
the  proper  courts  and  officers  of  the  Philippine  Islands  and  for  the  head- 
quarters of  military  departments  in  the  United  States,  twelve  copies; 
and  to  each  of  the  places  where  district  courts  of  the  United  States  are 
now  holdcn,  including  Hawaii,  and  Porto  Rico,  one  copy.  He  shall  also 
distribute  one  complete  set  of  said  reports,  and  one  set  of  the  digests 
thereof,  to  such  executive  officers  as  are  entitled  to  receive  said  reports 
under  this  section  and  have  not  already  received  them,  to  each  Unit  id 
States  judge  and  to  each  United  States  district  attorney  who  has  not  received 
a  set,  to  each  of  the  places  where  district  courts  are  now  held  to  which  said 
reports  have  not  been  distributed,  and  to  each  of  the  places  at  which  a  dis- 
trict court  may  hereafter  be  held,  the  edition  of  said  reports  and  digests  to 

Manual — 50 


786  APPENDIX. 

be  selected  by  the  judge  or  officer  receiving  them.  No  distribution  of  reports 
and  digests  under  this  section  shall  be  made  to  any  place  where  the  court 
is  held  in  a  building  not  owned  by  the  United  States,  unless  there  be 
at  such  place  a  United  States  officer  to  whose  responsible  custody  they 
can  be  committed.  The  clerks  of  said  courts  (except  the  Supreme 
Court)  shall  in  all  cases  keep  said  reports  and  digest  for  the  use  of  the 
courts  and  of  the  officers  thereof.  Such  reports  and  digest  [s]  shall  remain 
the  property  of  the  United  States,  and  shall  be  preserved  by  the  officers 
above  named,  and  by  them  turned  over  to  their  successors  in  office. 
(36  Stats.  1154.) 

§  228  (Drawn  from  Act  July,  1,  1902,  32  Stats.  631).  The  publishers 
of  the  decisions  of  the  Supreme  Court  shall  deliver  to  the  Attorney 
General,  in  addition  to  the  three  hundred  copies  delivered  by  the  re- 
porter, such  number  of  copies  of  each  report  heretofore  published,  as 
the  Attorney  General  may  require,  for  which  he  shall  pay  not  more 
than  two  dollars  per  volume,  and  such  number  of  copies  of  each  report 
hereafter  published  as  he  may  require,  for  which  he  shall  pay  not  more 
than  one  dollar  and  seventy-five  cents  per  volume.  The  Attorney  Gen- 
eral shall  include  in  his  ^  annual  estimates  submitted  to  Congress,  an 
estimate  for  the  current  volumes  of  such  reports,  and  also  for  the 
additional  sets  of  reports  and  digests  required  for  distribution  under  the 
section  last  preceding.  (36  Stats.  1155.) 

§  229.  (New.)  The  Attorney  General  is  authorized  to  procure  com- 
plete sets  of  the  Federal  Reporter  or,  in  his  discretion,  other  publication 
containing  the  decisions  of  the  circuit  courts  of  appeals,  circuit  courts, 
and  district  courts,  and  digests  thereof,  and  also  future  volumes  of  the 
same  as  issued,  and  distribute  a  copy  of  each  such  reports  and  digests 
to  each  place  where  a  circuit  court  of  appeals,  or  a  district  court,  is 
now  or  may  hereafter  regularly  be  held,  and  to  the  Supreme  Court  of 
the  United  States,  the  court  of  claims,  the  court  of  customs  appeals, 
the  commerce  court,  the  court  of  appeals  and  the  supreme  court  of  the 
District  of  Columbia,  the  Attorney  General,  the  Solicitor  General,  the 
Solicitor  of  the  Treasury,  the  Assistant  Attorney  General  for  the  De- 
partment of  the  Interior,  the  Commissioner  of  Patents,  and  the  Inter- 
state Commerce  Commission ;  and  to  the  Secretary  of  the  Senate,  for  the 
use  of  the  Senate,  and  to  the  Clerk  of  the  House  of  Representatives, 
•  for  the  use  of  the  House  of  Representatives,  not  more  than  three  sets 
each.  Whenever  any  such  court  room,  office,  or  officer  shall  have  a 
partial  or  complete  set  of  any  such  reports,  or  digests,  already  pur- 
chased or  owned  by  the  United  States,  the  Attorney  General  shall  dis- 


THE  JUDICIAL  CODE.  787 

tribute  to  such  court  room,  office,  or  officer,  only  sufficient  volumes  to 
make  a  complete  set  thereof.  No  distribution  of  reports  or  digests 
ander  this  section  shall  be  made  to  any  place  where  the  court  is  held 
in  a  building  not  owned  by  the  United  States,  unless  there  be  at  such 
place  a  United  States  officer  to  whose  responsible  custody  they  can  be 
committed.  The  clerks  of  the  courts  (except  the  Supreme  Court)  to 
which  the  reports  and  digests  are  distributed  under  this  section,  shall 
keep  such  reports  and  digests  for  the  use  of  the  courts  and  the  officers 
thereof.  All  reports  and  digests  distributed  under  the  provisions  of 
this  section  shall  be  and  remain  the  property  of  the  United  States  and, 
before  distribution,  shall  be  plainly  marked  on  their  covers  with  the 
words  "The  Property  of  the  United  States,"  and  shall  be  transmitted  by 
the  officers  receiving  them  to  their  successors  in  office.  Not  to  exceed 
two  dollars  per  volume  shall  be  paid  for  the  back  and  current  volumes 
of  the  Federal  Reporter  or  other  publication  purchased  under  the  provi- 
sions of  this  section,  and  not  to  exceed  five  dollars  per  volume  for  the 
digest,  the  said  money  to  be  disbursed  under  the  direction  of  the  Attor- 
ney General;  and  the  Attorney  General  shall  include  in  his  annual 
estimates  submitted  to  Congress,  an  estimate  for  the  back  and  current 
volumes  of  such  reports  and  digests,  the  distribution  of  which  is  pro- 
vided for  in  this  section.  (36  Stats.  1155.) 

§  230  (As  Amended  Act  Sept.  6,  1916,  c.  448,  §  1.  Re-enacting  §  684, 
Rev.  Stats.).  The  Supreme  Court  shall  hold  at  the  seat  of  government, 
one  term  annually,  commencing  on  the  first  Monday  in  October,  and  such 
adjourned  or  special  term  as  it  may  find  necessary  for  the  dispatch  of  busi- 
ness. (39  Stats.  726;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  708;  2  U.  8.  Comp. 
Stats.  1916,  §  1207;  Foster's  Federal  Practice,  5th  ed.,  p.  8.) 

§231  (Re-enacting  §685,  Rev.  Stats.).  If,  at  any  session  of  the 
Supreme  Court,  a  quorum  does  not  attend  on  the  day  appointed  for  hold- 
ing it,  the  justices  who  do  attend  may  adjourn  the  court  from  day  to  day 
for  twenty  days  after  said  appointed  time,  unless  there  be  sooner  a 
quorum.  If  a  quorum  does  not  attend  witbin  said  twenty  days  the 
business  of  the  court  shall  be  continued  over  till  the  next  appointed 
session;  and  if,  during  a  term,  after  a  quorum  has  assembled,  less  than 
that  number  attend  on  any  day,  the  justices  attending  may  adjourn 
the  court  from  day  to  day  until  there  is  a  quorum,  or  may  adjourn 
without  day.  (36  Stats.  1156;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  708;  2  U.  S. 
Comp.  Stats.  1916,  §  1208.) 

§232  (Re-enacting  §686,  Rev.  Stats.).  The  justices  attending  at  any 
term,  when  less  than  a  quorum  is  present,  may,  within  the  twenty  days 


788  APPENDIX. 

mentioned  in  the  preceding  section,  make  all  necessary  orders  touching 
any  suit,  proceeding,  or  process,  depending  in  or  returned  to  the  court, 
preparatory  to  the  hearing,  trial,  or  decision  thereof.  (36  Stats.  1156; 
5  Fed.  Stats.  Ann.,  2d  ed.,  p.  708;  2  U.  S.  Comp.  Stats.  1916,  §  1209.) 

§233  (Re-enacting  §687,  Rev.  Stats.).  The  Supreme  Court  shall 
have  exclusive  jurisdiction  of  all  controversies  of  a  civil  nature  where 
a  state  is  a  party,  except  between  a  state  and  its  citizens,  or  between 
a  state  and  citizens  of  other  states,  or  aliens,  in  which  latter  cases  it 
shall  have  original,  but  not  exclusive,  jurisdiction.  And  it  shall  have 
exclusively  all  such  jurisdiction  of  suits  or  proceedings  against  ambassa- 
dors or  other  public  ministers,  or  their  domestics  or  domestic  servants, 
as  a  court  of  law  can  have  consistently  with  the  law  of  nations ;  and 
original,  but  not  exclusive,  jurisdiction,  of  all  suits  brought  by  ambassa- 
dors, or  other  public  ministers,  or  in  which  a  consul  or  vice  consul  is 
a  party.  (36  Stats.  1156;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  708;  2  U.  S. 
Comp.  Stats.  1916,  §  1210;  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  41.) 

§234  (Re-enacting  §688,  Rev.  Stats.).  The  Supreme  Court  shall 
have  power  to  issue  writs  of  prohibition  to  the  district  courts,  when  pro- 
ceeding as  courts  of  admiralty  and  maritime  jurisdiction;  and  writs  of 
mandamus,  in  cases  warranted  by  the  principles  and  usages  of  law,  to 
any  courts  appointed  under  the  authority  of  the  United  States,  or  to 
persons  holding  office  under  the  authority  of  the  United  States,  where 
a  state,  or  an  ambassador,  or  other  public  minister,  or  a  consul,  or  vice 
consul  is  a  party.  (36  Stats.  1156;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  717; 
2  U.  S.  Comp.  Stats.  1916,  §1211;  Foster's  Federal  Practice,  5th  ed., 
p.  1437;  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  41.) 

§  235  (Re-enacting  §  689,  Rev.  Stats.).  The  trial  of  issues  of  fact  in 
the  Supreme  Court,  in  all  actions  at  law  against  citizens  of  the  United 
States,  shall  be  by  jury.  (36  Stats.  1156;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  722;  2  U.  S.  Comp.  Stats.  1916,  §  1212.  In  general,  Capital  Traction 
Co.  v.  Hof,  174  U.  S.  1,  43  L.  Ed,  873,  19  Sup.  Ct.  580.) 

§236  (Re-enacting  §690,  Rev.  Stats.).  The  Supreme  Court  shall 
have  appellate  jurisdiction  in  the  cases  hereinafter  specially  provided 
for.  (36  Stats.  1156.) 

§  237  (As  Amended  Act  Sept.  6,  1916,  c.  448,  §  2.).  A  final  judgment 
or  decree  in  any  suit  in  the  highest  court  of  a  state  in  which  a  decision 
in  the  suit  could  be  had,  where  is  drawn  in  question  the  validity  of  a 


TI7E   JUDICIAL   CODE.  789 

treaty  or  statute  of,  or  an  authority  exercised  under,  tlie  United   S» 
and  the  decision  is  against,  their  validity:  or  where  is  drawn  in  question 
the  validity  of  a  statute  of,  or  an  authority  exercised  under  any  * 
on  the  ground  of  their  being  repugnant  to  the  Constitution,  treat  ie-. 
laws  of  the  United  States,  and  the  decision  is  in  favor  of  their  validity, 
may  be  re-examined  and  reversed  or  affirmed  in  the  Supreme  Court  upon  a 
writ  of  error.     The  writ  shall  have  the  same  effect  as  if  the  judgment 
or  decree  complained  of  had  been  rendered  or  passed  in  a  court  of  the 
United  States.     The  Supreme  Court  may  reverse,  modify,  or  affirm  the 
judgments  or  decree  of  such  state  court,  and  may  in  its  discretion,  award 
execution  or  remand  the  same  to  the  court  from  which  it  was  removed 
by  the  writ. 

"It  shall  be  competent  for  the  Supreme  Court,  by  certiorari  or  other- 
wise, to  require  that  there  be  certified  to  it  for  review  and  determination 
with  the  same  power  and  authority  and  with  like  effect  as  if  brought 
up  by  writ  of  error,  any  cause  wherein  a  final  judgment  or  decree  has 
been  rendered  or  passed  by  the  highest  court  of  a  State  in  which  a  decision 
could  be  had,  where  is  drawn  in  question  the  validity  of  a  treaty  or  statute 
of,  or  an  authority  exercised  under  the  United  States,  and  the  decision  is 
in  favor  of  their  validity ;  or  where  is  drawn  in  question  the  validity  of  a 
statute  of,  or  an  authority  exercised  under  any  State,  on  the  ground  of 
their  being  repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United 
States  and  the  decision  is  against  their  validity;  or  where  any  title,  riuht. 
privilege,  or  immunity  is  claimed  under  the  Constitution,  or  any  treaty 
or  statute  of,  or  commission  held  or  authority  exercised  under  the  United 
States,  and  the  decision  is  either  in  favor  of  or  against  the  title,  right, 
privilege,  or  immunity  especially  set  up  or  claimed,  by  either  party,  under 
such  Constitution,  treaty,  statute,  commission,  or  authority."  (36  Stats. 
1156;  amended  38  Stats.  790;  39  Stats.  726.) 

§  238  (As  amended  Act  Jan.  28,  1915,  c.  22,  38  Stats.  8fl3).  Appeals 
and  writs  of  error  may  be  taken  from  the  district  courts,  including  the 
United  States  district  court  for  Hawaii,  and  the  United  States  District 
Court  for  Porto  Rico,  direct  to  the  Supreme  Court  in  the  following  cases: 
In  any  case  in  which  the  jurisdiction  of  the  court  is  in  issue,  in  which 
case  the  question  of  jurisdiction  alone  shall  bo  certified  to  the  Supreme 
Court  from  the  court  below  for  decision;  from  the  final  sentences  and 
decrees  in  prize  causes;  in  any  case  that  involves  the  construction  or 
application  of  the  Constitution  of  the  United  States;  in  any  case  in  which 
the  constitutionality  of  any  law  of  the  Uuitc.l  States,  or  the  validity  or 
construction  of  any  treaty  made  under  its  authority,  is  drawn  in  quest 
and  in  any  case  in  which  the  Constitution  or  law  of  a  state  is  claimed 
to  be  in  contravention  of  the  Constitution  of  the  United  States. 


790  APPENDIX. 

§  239.  In  any  case  within  its  appellate  jurisdiction,  as  defined  in  sec- 
tion one  hundred  and  twenty-eight,  the  circuit  court  of  appeals  at  any 
time  may  certify  to  the  Supreme  Court  of  the  United  States  any  ques- 
tions or  propositions  of  law  concerning  which  it  desires  the  instruction 
of  that  court  for  its  proper  decision;  and  thereupon  the  Supreme  Court 
may  either  give  its  instruction  on  the  questions  and  propositions  cer- 
tified to  it,  which  shall  be  binding  upon  the  circuit  court  of  appeals  in 
such  case,  or  it  may  require  that  the  whole  record  and  cause  be  sent 
up  to  it  for  its  consideration,  and  thereupon  shall  decide  the  whole 
matter  in  controversy  in  the  same  manner  as  if  it  had  been  brought 
there  for  review  by  writ  of  error  or  appeal.  (36  Stats.  1157;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  838;  2  U.  S.  Comp.  Stats.  1916,  §  1216;  Foster's 
Federal  Practice,  5th  ed.,  p.  2378;  Simkins'  Federal  Equity  Suit,  3d  ed., 
pp.  735,  737.) 

§  240.  In  any  case,  civil  or  criminal,  in  which  the  judgment  or  decree 
of  the  circuit  court  of  appeals  is  made  final  by  the  provisions  of  this 
Title,  it  shall  be  competent  for  the  Supreme  Court  to  require,  by 
certiorari  or  otherwise,  upon  the  petition  of  any  party  thereto,  any 
such  case  to  be  certified  to  the  Supreme  Court  for  its  review  and  deter- 
mination, with  the  same  power  and  authority  in  the  case  as  if  it  had 
been  carried  by  appeal  or  writ  of  error  to  the  Supreme  Court.  (36 
Stats.  1157 ;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  854 ;  2  U.  S.  Comp.  Stats.  1916, 
§  1217;  Foster's  Federal  Practice,  5th  ed.,  pp.  1471,  2378.) 

§241  (Drawn  from  §6,  Act  Mch.  3,  1891,  c.  517).  In  any  case  in 
which  the  judgment  or  decree  of  the  circuit  court  of  appeals  is  not 
made  final  by  the  provisions  of  this  Title,  there  shall  be  of  right  an 
appeal  or  writ  of  error  to  the  Supreme  Court  of  the  United  States  where 
the  matter  in  controversy  shall  exceed  one  thousand  dollars,  besides 
costs.  (36  Stats.  1157;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  877;  2  U.  S.  Comp. 
Stats.  1916,  §  1218;  Foster's  Federal  Practice,  5th  ed.,  p.  2374;  Simkins' 
Federal  Equity  Suit,  3d  ed.,  p.  741.) 

§242  (Re-enacting  §707,  Rev.  Stats.).  An  appeal  to  the  Supreme 
Court  shall  be  allowed  on  behalf  of  the  United  States,  from  all  judg- 
ments of  the  court  of  claims  adverse  to  the  United  States,  and  on  behalf 
of  the  plaintiff  in  any  case  where  the  amount  in  controversy  exceeds 
three  thousand  dollars,  or  where  his  claim  is  forfeited  to  the  United 
States  by  the  judgment  of  said  court  as  provided  in  section  one  hun- 
dred and  seventy-two.  (36  Stats.  1157;  5  Fed.  Stats.  Ann.,  2d  ed.. 
p.  887;  2  U.  S.  Comp.  Stats.  1916,  §  1219;  Foster's  Federal  Practice,  5tli 
ed.,  pp.  2353,  2385,  2438.) 


THE  JUDICIAL  CODE.  791 

§  243  (He-enacting  §  708,  Rev.  Stats.).  All  appeals  from  the  court 
of  claims  shall  be  taken  within  ninety  days  after  the  judgment  i.»  ren- 
dered, and  shall  be  allowed  under  such  regulations  as  the  Supreme  Court 
may  direct.  (36  Stats.  1157;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  890;  2  U.  S. 
Comp.  Stats.  1916,  §  1220;  Foster's  Federal  Practice,  5th  ed.,  pp.  2355, 
2457.) 

§  244  (Drawn  from  §  35  of  the  Organic  Act  of  Porto  Rico,  of  April 
12,  1906,  c.  191;  31  Stats.  77.  Repealed  Act  Jan.  28,  1915,  c.  22,  §3; 
38  Stats.  804).  Writs  of  error  and  appeals  from  the  final  judgments 
and  decrees  of  the  Supreme  Court  of,  and  the  United  States  district 
court  for,  Porto  Rico,  may  be  taken  and  prosecuted  to  the  Supreme 
Court  of  the  United  States,  in  any  case  wherein  is  involved  the  validity 
of  any  copyright,  or  in  which  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of,  or  authority  exercised  under,  the  United  States,  or 
wherein  the  Constitution  of  the  United  States,  or  a  treaty  thereof,  or 
an  act  of  Congress,  is  brought  in  question  and  the  right  claimed  there- 
under is  denied,  without  regard  to  the  sum  or  value  of  the  matter  in 
dispute;  and  in  all  other  cases  in  which  the  sum  or  value  of  the  matter 
in  dispute,  exclusive  of  costs,  to  be  ascertained  by  the  oath  of  either 
party  or  of  other  competent  witnesses,  exceeds  the  sum  or  value  of  five 
thousand  dollars.  Such  writs  of  error  and  appeals  shall  be  taken 
within  the  same  time,  in  the  same  manner,  and  under  the  same  regula- 
tions as  writs  of  error  and  appeals  are  taken  to  the  Supreme  Court  of 
the  United  Slates  from  the  district  courts.  (36  Stats.  1157;  5  Fed. 
Stats.  Ann.,  2d  ed.,  p.  893;  2  U.  S.  Comp.  Stats.  1916,  §  1215;  Foster's 
Federal  Practice,  5th  ed.,  pp.  2388,  2438,  2456,  2539.) 

§245  (Drawn  from  §702,  Rev.  Stats,  and  §§1,  2,  Act  Mch.  3,  1885, 
c.  355.  Superseded  by  Acts  admitting  Arizona  and  New  Mexico  as 
States).  Writs  of  error  and  appeals  from  the  final  judgments  and  de- 
crees of  the  supreme  courts  of  the  territories  of  Arizona  and  New 
Mexico  may  be  taken  and  prosecuted  to  the  Supreme  Court  of  the 
United  States  in  any  case  wherein  is  involved  the  validity  of  any  copy- 
right, or  in  which  is  drawn  in  question  the  validity  of  a  treaty  or  statute 
of,  or  authority  exercised  under,  the  United  States,  without  regard  to  the 
sum  or  value  of  the  matter  in  dispute;  and  in  all  other  cases  in  which 
the  sum  or  value  of  the  matter  in  dispute,  exclusive  of  costs,  to  be  asccr- 
tained  by  the  oath  of  either  party  or  of  other  competent  witnesses, 
exceeds  the  sum  or  value  of  five  thousand  dollars.  (36  Stats.  1158.) 

§246  (As  Amended  by  Act  Jan.  28,  1915,  c.  22,  §2).  (Writs  of 
error  and  appeals  from  the  Supreme  Court  of  Hawaii  and  the  Supreme 


792  APPENDIX. 

Court  of  Porto  Rico.)  Writs  of  error  and  appeals  from  the  final  judg- 
ments and  decrees  of  the  Supreme  Court  of  the  Territory  of  Hawaii 
and  of  the  Supreme  Court  of  Porto  Rico  may  be  taken  and  prosecuted 
to  the  Supreme  Court  of  the  United  States  within  the  same  time,  in 
the  same  manner,  under  the  same  regulations,  and  in  the  same  classes 
of  cases,  in  which  writs  of  error  and  appeals  from  the  final  judgments 
and  decrees  of  the  highest  court  of  a  State  in  which  a  decision  in  the 
suit  could  be  had,  may  be  taken  and  prosecuted  to  the  Supreme  Court 
of  the  United  States  under  the  provisions  of  section  two  hundred  and 
thirty-seven;  and  in  all  other  cases,  civil  or  criminal,  in  the  Supreme 
Court  of  the  Territory  of  Hawaii  or  the  Supreme  Court  of  Porto  Rico, 
it  shall  be  competent  for  the  Supreme  Court  of  the  United  States  to  re- 
quire by  certiorari,  upon  the  petition  of  any  party  thereto,  that  the  case 
be  certified  to  it,  after  final  judgment  or  decrees,  for  review  and  deter- 
mination, with  the  same  power  and  authority  as  if  taken  to  that  court 
by  appeal  or  writ  of  error;  but  certiorari  shall  not  be  allowed  in  any 
such  case  unless  the  petition  therefor  is  presented  to  the  Supreme  Court 
of  the  United  States  within  six  months  from  the  date  of  such  judgment 
or  decree.  (36  Stats.  1158,  as  amended  by  38  Stats.  804;  5  Fed.  Stats. 
Ann.,  2d  ed.,  p.  900;  2  U.  S.  Comp.  Stats.  1916,  §  1223;  Foster's  Federal 
Practice,  5th  ed.,  pp.  2390,  2456,  2558.) 

§  247  (Drawn  from  §  202  of  the  Criminal  Code  of  Alaska).  Appeals 
and  writs  of  error  may  be  taken  and  prosecuted  from  final  judgments 
and  decrees  of  the  district  court  for  the  district  of  Alafka  or  for  any 
division  thereof,  direct  to  the  Supreme  Court  of  the  United  States,  in 
the  following  cases :  In  priza  cases ;  and  in  all  cases  which  involve  the 
construction  or  application  of  the  Constitution  of  the  United  States,  or 
in  which  the  constitutionality  of  any  law  of  the  United  States  or  the 
validity  or  construction  of  any  treaty  made  under  its  authority  is  drawn 
in  question,  or  in  which  the  Constitution  or  law  of  a  state  is  claimed  to 
be  in  contravention  of  the  Constitution  of  the  United  States.  Such 
writs  of  error  and  appeal  shall  be  taken  within  the  same  time,  in  the 
same  manner,  and  under  the  same  regulations  as  writs  of  error  and 
appeals  are  taken  from  the  district  courts  to  the  Supreme  Court. 
(36  Stats.  1158;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  905;  2  U.  S.  Comp.  Stats. 
1916,  §  1224;  Foster's  Federal  Practice,  5th  ed.,  pp.  2388,  2437,  2456, 
2539.) 

§  248  (Re-enacting  §  10  of  Act  of  July  1,  1902,  c.  1369.  Superseded. 
Acts  Aug.  29,  1916,  c.  416,  §  27,  and  Act  Sept.  6,  1916,  c.  448,  §  5).  The 
Supreme  Court  of  the  United  States  shall  have  jurisdiction  to  review, 
revise,  reverse,  modify,  or  affirm  the  final  judgments  and  decrees  of  the 


THE    JUDICIAL,    CODB.  793 

supreme  court  of  the  Philippine  Islands  in  all  actions,  cases,  causes,  and 
proceedings  now  pending  therein  or.  hereafter  determined  thereby,  in 
which  the  Constitution,  or  any  statute,  treaty,  title,  right,  or  privilege  of 
the  United  States  is  involved,  or  in  causes  in  which  the  value  in  con- 
troversy exceeds  twenty-five  thousand  dollars,  or  in  which  the  title  or  pos- 
session of  real  estate  exceeding  in  value  the  sum  of  twenty-live  thousand 
dollars,  to  be  ascertained  by  the  oath  of  either  party  or  of  other  compe- 
tent witnesses,  is  involved  or  brought  in  question ;  and  such  final  judg- 
ments or  decrees  may  and  can  be  reviewed,  revised,  reversed,  modified, 
or  affirmed  by  said  Supreme  Court  on  appeal  or  writ  of  error  by  the 
party  aggrieved,  within  the  same  time,  in  the  same  manner,  under  the 
same  regulations,  and  by  the  same  procedure,  as  far  as  applicable,  as 
the  final  judgments  and  decrees  of  the  district  courts  of  the  United 
States.  (36  Stats.  1158;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  907;  2  U.  S. 
Comp.  Stats.  1916,  §§1225,  1225a,  1225b;  Foster's  Federal  Practice, 
5th  ed.,  pp.  2391,  2456,  2539.) 

§  249  (Re-enacting  §  703,  Rev.  Stats.,  which  section  is  repealed  by  §  297, 
Jud.  Code).  In  all  cases  where  the  judgment  or  decree  of  any  court  of 
a  territory  might  be  reviewed  by  the  Supreme  Court  on  writ  of  error 
or  appeal,  such  writ  of  error  or  appeal  may  be  taken,  within  the  time 
and  iii  the  manner  provided  by  law,  notwithstanding  such  territory  has, 
after  such  judgment  or  decree,  been  admitted  as  a  state;  and  the  Supreme 
Court  shall  direct  the  mandate  to  such  court  as  the  nature  of  the  writ 
of  error  or  appeal  requires.  (36  Stats.  1158;  5  Fed.  Stats.  Ann.,  2d  ed., 
p.  912;  2  U.  S.  Comp.  Stats.  1916,  §1226;  Foster's  Federal  Practice, 
5th  ed.,  p.  2539.) 

§  250.  Any  final  judgment  or  decree  of  the  court  of  appeals  of  the 
District  of  Columbia  may  be  re-examined  and  affirmed,  reversed,  or  modi- 
fied by  the  Supreme  Court  of  the  United  States,  upon  writ  of  error  or 
appeal,  in  the  following  cases: 

First.  In  cases  in  which  the  jurisdiction  of  the  trial  court  is  in  issue; 
but  when  any  such  case  is  not  otherwise  reviewable  in  said  Supreme  Court, 
then  the  question  of  jurisdiction  alone  shall  be  certified  to  said  Supreme 
Court  for  decision. 

Second.     In  prize  cases. 

Third.  In  cases  involving  the  construction  or  application  of  the  Con- 
stitution of  the  United  States,  or  the  constitutionality  of  any  law  of  the 
United  States,  or  the  validity  or  construction  of  any  treaty  made  under 
its  authority. 

Fourth.  In  cases  in  which  the  Constitution,  or  any  law  of  a  state,  is 
claimed  to  be  in  contravention  of  the  Constitution  of  the  United  Stataa. 


794  APPENDIX. 

Fifth.  In  cases  in  which  the  validity  of  any  authority  exercised  under 
the  United  States,  or  the  existence  or  scope  of  any  power  or  duty  of  an 
officer  of  the  United  States,  is  drawn  in  question. 

Sixth.  In  cases  in  which  the  construction  of  any  law  of  the  United 
States  is  drawn  in  question  by  the  defendant. 

Except  as  provided  in  the  next  succeeding  section,  the  judgments  and 
decrees  of  said  court  of  appeals  shall  be  final  in  all  cases  arising  under 
the  patent  laws,  the  copyright  laws,  the  revenue  laws,  the  criminal  laws, 
and  in  admiralty  cases;  and,,  except  as  provided  in  the  next  succeeding 
section,  the  judgments  and  decrees  of  said  court  of  appeals  shall  be  final 
in  all  cases  not  reviewable  as  hereinbefore  provided. 

Writs  of  error  and  appeals  shall  be  taken  within  the  same  time,  in  the 
same  manner,  and  under  the  same  regulations  as  writs  of  error  and  appeals 
are  taken  from  the  circuit  courts  of  appeals  to  the  Supreme  Court  of  the 
United  States.  (36  Stats.  1159;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  913;  2 
U.  S.  Comp.  Stats.  1916,  §1227;  Foster's  Federal  Practice,  5th  ed., 
pp.  1382,  1519,  2387,  2436,  2439,  2457.) 

§  251.  In  any  case  in  which  the  judgment  or  decree  of  said  court  of 
appeals  is  made  final  by  the  section  last  preceding,  it  shall  be  competent 
for  the  Supreme  Court  of  the  United  States  to  require,  by  certiorari  or 
otherwise,  any  such  case  to  be  certified  to  it  for  its  review  and  determina- 
tion, with  the  same  power  and  authority  in  the  case  as  if  it  had  been  carried 
by  writ  of  error  or  appeal  to  said  Supreme  Court.  It  shall  also  be  com- 
petent for  said  court  of  appeals,  in  any  case  in  which  its  judgment  or 
decree  is  made  final  under  the  section  last  preceding,  at  any  time  to  certify 
to  the  Supreme  Court  of  the  United  States  any  questions  or  propositions 
of  law  concerning  which  it  desires  the  instruction  of  that  court  for  their 
proper  decision;  and  thereupon  the  Supreme  Court  may  either  give  its 
instruction  on  the  questions  and  propositions  certified  to  it,  which  shall 
be  binding  upon  said  court  of  appeals  in  such  case,  or  it  may  require 
that  the  whole  record  and  cause  be  sent  up  to  it  for  its  consideration,  and 
thereupon  shall  decide  the  whole  matter  in  controversy  in  the  same  manner 
as  if  it  had  been  brought  there  for  review  by  writ  of  error  or  appeal. 
(36  Stats.  1159;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  917;  2  U.  S.  Comp.  Stats. 
1916,  §  1228;  Foster's  Federal  Practice,  5th  ed.,  pp.  1520,  2379,  2387.) 

The  part  of  the  section  authorizing  certiorari  is  from  Act  of  March  3, 
1897,  c.  390,  29  Stats.  692.  The  part  referring  to  certifying  questions  is  new 
legislation  as  concerns  the  District  of  Columbia. 

'§252  ( Re-enacting  §§  24  and  25  of  the  Bankruptcy  Act  of  July  1, 
1898).  The  Supreme  Court  of  the  United  States  is  hereby  invested  with 
appellate  jurisdiction  of  controversies  arising  in  bankruptcy  proceedings, 


THE  JUDICIAL  CODS.  795 

from  tne  courts  of  bankruptcy,  from  which  it  has  appellate  jurisdiction 
in  other  cases;  and  shall  exercise  a  like  jurisdiction  from  courts  of  bank- 
ruptcy not  within  any  organized  circuit  of  the  United  States  and  from 
tie  supreme  court  of  the  District  of  Columbia. 

An  appeal  may  be  taken  to  the  Supreme  Court  of  the  United  States 
from  any  final  decision  of  a  court  of  appeals  allowing  or  rejecting  a  claim 
under  the  laws  relating  to  bankruptcy,  under  such  rules  and  within  such 
time  as  may  be  prescribed  by  said  Supreme  Court,  in  the  following  cases 
and  no  other: 

First.  Where  the  amount  in  controversy  exceeds  the  sum  of  two  thou- 
sand dollars,  and  the  question  involved  is  one  which  might  have  been  taken 
on  appeal  or  writ  of  error  from  the  highest  court  of  a  state  to  the  Supreme 
Court  of  the  United  States;  or 

Second.  Where  some  justice  of  the  Supreme  Court  shall  certify  that 
in  his  opinion  the  determination  of  the  question  involved  in  the  allow- 
ance or  rejection  of  such  claim  is  essential  to  a  uniform  construction  of 
the  laws  relating  to  bankruptcy  throughout  the  United  States. 

Controversies  may  be  certified  to  the  Supreme  Court  of  the  United 
States  from  other  courts  of  the  United  States,  and  the  former  court  may 
exercise  jurisdiction  thereof,  and  may  issue  writs  of  certiorari  pursuant 
to  the  provisions  of  the  United  States  laws  now  in  force  or  such  as  may 
be  hereafter  enacted.  (36  Stats.  1159;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  919; 
2  U.  S.  Comp.  Stats.  1916,  §  1229;  Simkins'  Federal  Equity  Suit,  3d  ed., 
p.  745.) 

§  253  (Re-enacting  §  710,  Rev.  Stats.).  Cases  on  writ  of  error  to  revise 
the  judgment  of  a  state  court  in  any  criminal  case  shajl  have  precedence 
on  the  docket  of  the  Supreme  Court,  of  all  cases  to  which  the  government 
of  the  United  States  is  not  a  party,  excepting  only  such  cases  as  the  court, 
in  its  discretion,  may  decide  to  be  of  public  importance.  (36  Stats.  1160.) 

§254  (Drawn  from  Act  Mch.  3,  1877,  c.  105).  There  shall  be  taxed 
against  the  losing  party  in  each  and  every  cause  pending  in  the  Supreme 
Court  the  cost  of  printing  the  record  in  such  case,  except  when  the  judg- 
ment is  against  the  United  States.  (36  Stats.  1160.) 

§  255.  Any  woman  who  shall  have  been  a  member  of  the  bar  of  the 
highest  court  of  any  state  or  territory,  or  of  the  court  of  appeals  of  th.- 
District  of  Columbia,  for  the  space  of  three  years,  and  shall  have  main- 
tained a  good  standing  before  such  court,  and  who  shall  be  a  person  of 
good  moral  character,  shall,  on  motion,  and  the  production  of  such  records, 
be  admitted  to  practice  before  the  Supreme  Court  of  the  United  State*. 


796 


APPENDIX. 


CHAPTER  ELEVEN. 


PROVISIONS  COMMON  TO  MORE  THAN  ONE  COURT. 


SEO. 

256.  Cases    in    which   jurisdiction    of 

United   States   courts   shall  be 
exclusive  of  state  courts. 

257.  Oath  of  United  States  judges. 

258.  Judges     prohibited     from    prac- 

ticing law. 

259.  Traveling  expenses,  etc.,  of  cir- 

cuit   justices    and    circuit    and 
district  judges. 

260.  Salary  of  judges  after  resigna- 

tion. 

261.  Writs  of  ne  exeat. 

262.  Power  to  issue  writs. 

263.  Temporary  restraining  orders. 

264.  Injunctions;  in  what  eases  judge 

may   grant. 

265.  Injunctions   to   stay   proceedings 

in  state  courts. 


SEO. 

266.  Injunctions   based    upon    alleged 

unconstitutionality  of  state 
statutes;  when  and  by  whom 
may  be  granted.  ' 

267.  When    suits    in    equity    may    be 

maiDtained. 

2-68.  Power   to   administer   oaths   and 
punish  contempts. 

269.  New  trials. 

270.  Power    to    hold    to    security    for 

the  peace  and   good   behavior. 

271.  Power  to  enforce  awards  of  for- 

eign consuls,  etc.,  in  certain 
cases. 

272.  Parties  may  manage  their  causes 

personally  or  by  counsel. 

273.  Certain  officers  forbidden  to  act 

as  attorneys. 

274.  Penalty   for  violating   preceding 

section. 


§  256.  The  jurisdiction  vested  in  the  courts  of  the  United  States  in 
the  cases  and  proceedings  hereinafter  mentioned,  shall  be  exclusive  of 
the  courts  of  the  several  states: 

First.  Of  all  crimes  and  offenses  cognizable  under  the  authority  of  the 
United  States. 

Second.  Of  all  suits  for  penalties  and  forfeitures  incurred  under  the 
laws  of  the  United  States. 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdiction;  sav- 
ing to  suitors,  in  all  cases,  the  right  of  a  common-law  remedy,  where  the 
common  law  is  competent  to  give  it. 

Fourth.  Of  all  seizures  under  the  laws  of  the  United  States,  on  land 
or  on  waters  not  within  admiralty  and  maritime  jurisdiction ;  of  all  prizes 
brought  into  the  United  States;  and  of  all  proceedings  for  the  condemna- 
tion of  property  taken  as  prize. 

Fifth.  Of  all  cases  arising  under  the  patent-right  or  copyright  laws 
of  the  United  States. 

Sixth.     Of  all  matters  and  proceedings  in  bankruptcy. 

Seventh.  Of  all  controversies  of  a  civil  nature,  where  a  state  is  a  party, 
except  between  a  state  and  its  citizens,  or  between  a  state  and  citizens  of 
other  states,  or  aliens. 


THE  JUDICIAL  CODS.  797 

Eighth.  Of  all  suits  and  proceedings  against  ambassadors,  or  other 
public  ministers,  or  their  domestics,  or  domestic  servants,  or  against  eon-4 
suls  or  vice  consuls. 

§257  (Re-enacting  §  712,  Rev.  Stats.).  The  justices  of  the  Supreme 
Court,  the  circuit  judges,  and  the  district  judges,  hereafter  appointed,  shall 
take  the  following  oath  before  they  proceed  to  perform  the  duties  of  their 

respective  offices:  "I, ,  do  solemnly  swear   (or  affirm)   that  I  will 

administer  justice  without  respect  to  persons,  and  do  equal  right  to  the 
poor  and  to  the  rich,  and  that  I  will  faithfully  and  impartially  discharge 

and  perform  all  the  duties  incumbent  upon  me  as according  to  the 

best  of  my  abilities  and  understanding,  agreeably  to  the  Constitution  and 
laws  of  the  United  States:  So  help  me  God."     (36  Stats.  1161.) 

§  258  (Re-enacting  §  713,  Rev.  Stats.).  It  shall  not  be  lawful  for  any 
judge  appointed  under  the  authority  of  the  United  States  to  exercise  the 
profession  or  employment  of  counsel  or  attorney,  or  to  be  engaged  in  the 
practice  of  the  law.  Any  person  offending  against  the  prohibition  of  this 
section  shall  be  deemed  guilty  of  a  high  misdemeanor.  (36  Stats.  1161.) 

§  259  (Drawn  from  §  554,  Rev.  Stats.).  The  circuit  justices,  the  circuit 
and  district  judges  of  the  United  States,  and  the  judges  of  the  district 
courts  of  the  United  States  in  Alaska,  Hawaii,  and  Porto  Rico,  shall  each 
be  allowed  and  paid  his  necessary  expenses  of  travel,  and  his  reasonable 
expenses  (not  to  exceed  ten  dollars  per  day)  actually  incurred  for  main- 
tenance, consequent  upon  his  attending  court  or  transacting  other  official 
business  in  pursuance  of  law  at  any  place  other  than  his  official  place 
of  residence,  said  expenses  to  be  paid  by  the  marshal  of  the  district  in 
which  such  court  is  held  or  official  business  transacted,  upon  the  written 
certificate  of  the  justice  or  judge.  The  official  place  of  residence  of  each 
justice  and  of  each  circuit  judge  while  assigned  to  the  commerce  court 
shall  be  at  Washington ;  and  the  official  place  of  residence  of  each  circuit 
and  district  judge,  and  of  each  judge  of  the  district  courts  of  the  United 
States  in  Alaska,  Hawaii,  and  Porto  Rico,  shall  be  at  that  place  nearest 
bis  actual  residence  at  which  either  a  circuit  court  of  appeals  or  a  district 
court  is  regularly  held.  Every  such  judge  shall,  upon  his  appointment, 
and  from  time  to  time  thereafter  whenever  he  may  change  his  official 
residence,  in  writing  notify  the  Department  of  Justice  of  his  official  place 
of  residence.  (36  Stats.  1161.) 

§  260  (Re-enacting  §  714,  Rev.  Stats.).  When  any  judge  of  any  court 
of  the  United  States  appointed  to  hold  his  office  during  good  behavior 
resigns  his  office,  after  having  held  a  commission  or  commissions  as  jud.se 
of  any  such  court  or  courts  at  least  ten  years  continuously,  and  having 


798  APPENDIX. 

attained  the  age  of  seventy  years,  he  shall,  during  the  residue  of  his  natural 
life,  receive  the  salary  which  is  payable  at  the  time  of  his  retirement  for 
the  office  that  he  held  at  the  time  of  his  resignation.  (36  Stats.  1161.) 

§  261.  Writs  of  ne  exeat  may  be  granted  by  any  justice  of  the  Supreme 
Court,  in  cases  where  they  might  be  granted  by  the  Supreme  Court;  and 
by  any  district  judge,  in  cases  where  they  might  be  granted  by  the  district 
court  of  which  he  is  a  judge.  But  no  writ  of  ne  exeat  shall  be  granted 
unless  a  suit  in  equity  is  commenced,  and  satisfactory  proof  is  made  to  the 
court  or  judge  granting  the  same  that  the  defendant  designs  quickly  to 
depart  from  the  United  States.  (36  Stats.  1162.) 

§  262.  The  Supreme  Court  and  the  district  courts  shall  have  power  to 
issue  writs  of  scire  facias.  The  Supreme  Court,  the  circuit  courts  of 
appeals,  and  the  district  courts  shall  have  power  to  issue  all  writs  not 
specifically  provided  for  by  statute,  which  may  be  necessary  for  the  exer- 
cise of  their  respective  jurisdictions,  and  agreeable  to  the  usages  and 
principles  of  law.  (36  Stats.  1162;  5  Fed.  Stats.  Ann.,  2d  ed.,  p.  928; 
2  U.  S.  Comp.  Stats.  1916,  §1239;  Foster's  Federal  Practice,  5th  ed., 
pp.  8,  1409,  1527,  2413;  Simkins'  Federal  Equity  Suit,  3d  ed.,  p.  41.) 

§  263  (Repealed  §  17,  Clayton  Act  of  Oct.  15,  1914,  c.  323,  38  Stats. 
737).  Whenever  notice  is  given  of  a  motion  for  an  injunction  out  of 
a  district  court,  the  court  or  judge  thereof  may,  if  there  appears  to  be 
danger  of  irreparable  injury  from  delay,  grant  an  order  restraining  the 
act  sought  to  be  enjoined  until  the  decision  upon  the  motion;  and  such 
order  may  be  granted  with  or  without  security,  in  the  discretion  of  the 
court  or  judge. 

§  264  (Drawn  from  §  719,  Rev.  Stats.).  Writs  of  injunction  may  be 
granted  by  any  justice  of  the  Supreme  Court  in  cases  where  they  might 
be  granted  by  the  Supreme  Court ;  and  by  any  judge  of  a  district  court 
in  cases  where  they  might  be  granted  by  such  court.  But  no  justice  of  the 
Supreme  Court  shall  hear  or  allow  any  application  for  an  injunction  or 
restraining  order  in  any  cause  pending  in  the  circuit  to  which  he  is  allotted, 
elsewhere  than  within  such  circuit,  or  at  such  place  outside  of  the  same  as 
the  parties  may  stipulate  in  writing,  except  when  it  cannot  be  heard  by 
the  district  judge  of  the  district.  In  case  of  the  absence  from  the  district 
of  the  district  judge,  or  of  his  disability,  any  circuit  judge  of  the  circuit  in 
which  the  district  is  situated  may  grant  an  injunction  or  restraining  order 
in  any  case  pending  in  the  district  court,  where  the  same  might  be  granted 
by  the  district  judge. 


THE  JUDICIAL  CODE.  799 

§  265  (Re-enacting  §  720,  Rev.  Stats.).  The  writ  of  injunction  shall 
not  be  granterl  by  any  court  of  the  United  States  to  stay  proceedings  in 
any  court  of  a  state,  except  in  cases  where  such  injunction  may  be  au- 
thorized by  any  law  relating  to  proceedings  in  bankruptcy. 

§266  (As  Amended  Act  March  4,  1913,  c.  160).  No  interlocutory  in- 
junction suspending  or  restraining  .the  enforcement,  operation,  or  execu- 
tion of  any  statute  of  a  state  by  restraining  the  action  of  any  officer 
of  such  state  in  the  enforcement  or  execution  of  such  statute,  or  in  the 
enforcement  or  execution  of  an  order  made  by  an  administrative  board 
or  commission  acting  under  and  pursuant  to  the  statutes  of  such  State, 
shall  be  issued  or  granted  by  any  justice  of  the  Supreme  Court,  or  by 
any  district  court  of  the  United  States,  or  by  any  judge  thereof,  or  by 
any  cimiit  judge  acting  as  district  judge,  upon  the  ground  of  the  uncon- 
stitutionally of  such  statute,  unless  the  application  for  the  same  shall 
be  presented  to  a  justice  of  the  Supreme  Court  of  the  United  States,  or 
to  a  circuit  or  district  judge,  and  shall  be  heard  and  determined  bylhree 
judges,  of  whom  at  least  one  shall  be  a  justice  of  the  Supreme  Court,  or 
a  circuit  judge,  and  the  other  two  may  be  either  circuit  or  district  judges, 
and  unless  a  majority  of  said  three  judges  shall  concur  in  granting  such 
application.  Whenever  such  application  as  aforesaid  is  presented  to  a 
justice  of  the  Supreme  Court,  or  to  a  judge,  he  shall  immediately  call  to 
'his  assistance  to  hear  and  determine  the  application  two  other  judges: 
Provided,  however,  That  one  of  such  three  judges  shall  be  a  justice  of 
the  Supreme  Court,  or  a  circuit  judge.  Said  application  shall  not  be 
heard  or  determined  before  at  least  five  days'  notice  of  the  hearing  has 
been  given  to  the  governor  and  to  the  attorney  general  of  the  state,  and 
to  such  other  persons  as  may  be  defendants  in  the  suit :  Provided,  That  if 
of  opinion  that  irreparable  loss  or  damage  would  result  to  the  complainant 
unless  a  temporary  restraining  order  is  granted,  any  justice  of  the  Supreme 
Court,  or  any  circuit  or  district  judge,  may  grant  such  temporary  restrain- 
ing order  at  any  time  before  such  hearing  and  determination  of  the  appli- 
cation for  an  interlocutory  injunction,  but  such  temporary  restraining 
order  shall  remain  in  force  only  until  the  hearing  and  determination  of 
the  application  for  an  interlocutory  injunction  upon  notice  as  aforesaid. 
The  hearing  upon  such  application  for  an  interlocutory  injunction  shall  be 
given  precedence  and  shall  be  in  every  way  expedited  and  be  assigned  for 
a  hearing  at  the  earliest  practicable  day  after  the  expiration  of  the  notice 
hereinbefore  provided  for.  An  appeal  may  be  taken  direct  to  the  Supreme 
Court  of  the  United  States  from  the  order  granting  or  denying,  alter 
notice  and  hearing,  an  interlocutory  injunction  in  such  case.  It  is  further 
provided  that  if  before  the  final  hearing  of  such  application  a  suit  shall 


800  APPENDIX. 

have  been  brought  in  a  court  of  the  State  having  jurisdiction  thereof 
under  the  laws  of  such  State,  to  enforce  such  statute  or  order,  accom- 
panied by  a  stay  in  such  State  court  of  proceedings  under  such  statute 
or  order  pending  the  determination  of  such  suit  by  such  State  court,  all 
proceedings  in  any  court  of  the  United  States  to  restrain  the  execution 
of  such  statute  or  order  shall  be  stayed  pending  the  final  determination 
of  such  suit  in  the  courts  of  the  Stafe.  Such  stay  may  be  vacated  upon 
proof  made  after  hearing,  and  notice  of  ten  days  served  upon  the  attorney 
general  of  the  State,  that  the  suit  in  the  State  courts  is  not  being  prose- 
cuted with  diligence  and  good  faith.  (36  Stats.  1162,  as  amended  by  37 
Stats.  1013.) 

§267  (Re-enacting  §  723,  Rev.  Stats.).  Suits  in  equity  shall  not  be 
sustained  in  any  court  of  the  United  States  in  any  case  where  a  plain, 
adequate,  and  complete  remedy  may  be  had  at  law.  (36  Stats.  1163.) 

§  268.  The  said  courts  shall  have  power  to  impose  and  administer  all 
necessary  oaths,  and  to  punish,  by  fine  or  imprisonment,  at  the  discretion 
of  the  court,  contempts  of  their  authority:  Provided,  That  such  power 
to  punish  contempts  shall  not  be  construed  to  extend  to  any  cases  except 
the  misbehavior  of  any  person  in  their  presence,  or  so  near  thereto  as 
to  obstruct  the  administration  of  justice,  the  misbehavior  of  any  of  the 
officers  of  said  courts  in  their  official  transactions,  and  the  disobedience, 
or  resistance  by  any  such  officer,  or  by  any  party,  juror,  witness,  or  other 
person  to  any  lawful  writ,  process,  order,  rule,  decree,  or  command  of 
the  said  courts. 

§  269.  All  of  the  said  courts  shall  have  power  to  grant  new  trials,  in 
cases  where  there  has  been  a  trial  by  jury,  for  reasons  for  which  new  trials 
have  usually  been  granted  in  the  courts  of  law. 

§  270.  The  judges  of  the  Supreme  Court  and  of  the  circuit  courts  of 
appeals  and  district  courts,  United  States  commissioners,  and  the  judges 
and  other  magistrates  of  the  several  States,  who  are  or  may  be  authorized 
by  law  to  make  arrests  for  offenses  against  the  United  States,  shall  have 
the  like  authority  to  hold  to  security  of  the  peace  and  for  good  behavior, 
in  cases  arising  under  the  Constitution  and  laws  of  the  United  States,  as 
may  be  lawfully  exercised  by  any  judge  or  justice  of  the  peace  of  the 
respective  states,  in  cases  cognizable  before  them. 

§  271.  The  district  courts  and  the  United  States  commissioners  shall 
have  power  to  carry  into  effect,  according  to  the  true  intent  and  meaning 
thereof,  the  award  or  arbitration  or  decree  of  any  consul,  vice  consul,  or 
commercial  agent  of  any  foreign  nation,  made  or  rendered  by  virtue  of 


THE  JUDICIAL  CODK.  801 

authority  conferred  on  him  as  such  consul,  vice  consul,  or  commercial 
agent,  to  sit  as  judge  or  arbitrator  in  such  differences  as  may  arise  between 
the  captains  and  crews  of  the  vessels  belonging  to  the  nation  whose  inter- 
ests are  committed  to  his  charge,  application  for  the  exercise  of  such 
power  being  first  made  to  such  court  or  commissioner,  'by  petition  of  such 
consul,  vice  consul,  or  commercial  agent.  And  said  courts  and  commis- 
sioners may  issue  all  proper  remedial  process,  mesne  and  final,  to  cany 
into  full  effect  such  award,  arbitration,  or  decree,  and  to  enforce  obedience 
thereto  by  imprisonment  in  the  jail  or  other  place  of  confinement  in  the 
district  in  which  the  United  States  may  lawfully  imprison  any  person 
arrested  under  the  authority  of  the  United  States,  until  such  award,  arbi- 
tration, or  decree  is  complied  with,  or  the  parties  are  otherwise  discharged 
therefrom,  by  the  consent  in  writing  of  such  consul,  vice  consul,  or  com- 
mercial agent,  or  his  successor  in  office,  or  by  the  authority  of  the  foreign 
government  appointing  such  consul,  vice  consul,  or  commercial  agent: 
Provided,  however,  That  the  expenses  of  the  said  imprisonment  and  main- 
tenance of  the  prisoners,  and  the  cost  of  the  proceedings,  shall  be  borne 
by  such  foreign  government,  or  by  its  consul,  vice  consul,  or  commercial 
agent  requiring  such  imprisonment.  The  marshals  of  the  United  States 
shall  serve  all  such  process,  and  do  all  other  acts  necessary  and  proper  to 
carry  into  effect  the  premises,  under  the  authority  of  the  said  courts  and 
commissioners. 

§'272  (Re-enacting  §  747,  Rev.  Stats.).  In  all  the  courts  of  the  United 
States  the  parties  may  plead  and  manage  their  own  causes  personally,  or 
by  the  assistance  of  such  counsel  or  attorneys  at  law  as,  by  the  rules  of 
the  said  courts,  respectively,  are  permitted  to  manage  and  conduct  causes 
therein.  (36  Stats.  1164.) 

§  273  (Re-enacting  §  748,  Rev.  Stats.).  No  clerk,  or  assistant  or  deputy 
clerk,  of  any  territorial,  district,  or  circuit  court  of  appeals,  or  of  the 
court  of  claims,  or  of  the  Supreme  Court  of  die  United  States,  or  marshal 
or  deputy  marshal  of  the  United  States  within  the  district  for  which  he 
is  appointed,  shall  act  as  a  solicitor,  proctor,  attorney,  or  counsel  in  any 
cause  depending  in  any  of  said  courts,  or  in  any  district  for  whirli  i 
acting  as  such  officer.  (36  Stats.  1164.) 

§  274  (Re-enacting  §  749,  Rev.  Stats.).  Whoever  shall  violate  the  pro- 
visions of  the  preceding  section  shall  be  stricken  from  the  roll  of  ntt«>r 
neys  by  the  court  upon  complaint,  upon  which  the  respondent  shall ^have 
due  notice  and  be  heard  in  his  defense;  and  in  the  case  of  a  marshal  or 
deputy  marshal  so  acting,  he  shall  be  recommended  by  the  court  for 
dismissal  from  office.  (36  Stats.  1164.) 

Manual— 51 


»  802  i        APPENDIX. 

Act  March  3,  1915,  c.  90.  (Amendment  of  suit  brought  on  wrong  sida 
of  court — Equitable  defenses  interposed  in  actions  at  law — Amending 
where  diverse  citizenship  is  defectively  alleged.)  That  the  Act  entitled 
"An  Act  to  codify;  revise,  and  amend  the  laws  relating  to  the  judiciary," 
approved  March  third,  nineteen  hundred  and  eleven,  be,  and  the  same  is 
hereby,  amended  by  inserting  after  section  two  hundred  and  seventy-four 
thereof  three  new  sections,  to  be  numbered,  respectively,  two  hundred  and 
seventy-four  a,  two  hundred  and  seventy-four  b,  and  two  hundred  and 
seventy-four  c,  reading  as  follows: 

§  274a.  That  in  case  any  of  said  courts  shall  find  that  a  suit  at 
law  should  have  been  brought  in  equity  or  a  suit  in  equity  should  have 
been  brought  at  law,  the  court  shall  order  any  amendment  to  the  pleadings 
which  may  be  necessary  to  conform  them  to  the  propfer  practice.  Any 
party  to  the  suit  shall  have  the  right,  at  any  stage  of  the  cause,  to  amend 
his  pleadings  so  as  to  obviate  the  objection  that  his  suit  was  not  brought 
on  the  right  side  of  the  court.  The  cause  shall  proceed  and  be  determined 
upon  such  amended  pleadings.  All  testimony  taken  before  such  amend- 
ment, if  preserved,  shall  stand  as  testimony  in  the  cause  with  like  effect 
as  if  the  pleadings  had  been  originally  in  the  amended  form. 

§  274b.  That  in  all  actions  at  law  equitable  defenses  may  be  inter- 
posed by  answer,  plea,  or  replication  without  the  necessity  of  filing  a  bill 
on  the  equity  side  of  the  court.  The  defendant  shall  have  the  same  rights 
in  such  case  as  if  he  had  filed  a  bill  embodying  the  defense  of  seeking  the 
relief  prayed  for  in  such  answer  or  plea.  Equitable  relief  respecting  the 
subject  matter  of  the  suit  may  thus  be  obtained  by  answer  or  plea.  In 
case  affirmative  relief  is  prayed  in  such  answer  or  plea,  the  plaintiff  shall 
file  a  replication.  Review  of  the  judgment  or  decree  entered  in  such  case 
shall  be  regulated  by  rule  of  court.  Whether  such  review  be  sought  by 
writ  of  error  or  by  appeal- the  appellate  court  shall  have  full  power  to 
render  such  judgment  upon  the  records  as  law  and  justice  shall  require. 

§  274c.  That  where,  in  any  suit  brought  in  or  removed  from  any 
state  court  to  any  district  of  the  United  States,  the  jurisdiction  of  the 
district  court  is  based  upon  the  diverse  citizenship  of  the  parties,  and 
such  diverse  citizenship  in  fact  existed  at  the  time  the  suit  was  brought 
or  removed,  though  defectively  alleged,  either  party  may. amend  at  any 
stage  of  the  proceedings  and  in  the  appellate  court  upon  such  terms  as  the 
court  may  impose,  so  as  to  show  on  the  record  such  diverse  citizenship 
and  jurisdiction,  and  thereupon  such  suit  shall  be  proceeded  with  the 
same  as  though  the  diverse  citizenship  had  been  fully  and  correctly  pleaded 
at  the  inception  of  the  suit,  or,  if  it  be  a  removed  case,  in  the  petition  for 
removal.  (38  Stats.  956.) 


THE  JUDICIAL  CODE. 


CHAPTER  TWELVE. 


JURIES. 


Oft 

275.  Qualifications     and     exemptions 

of  jurors. 

276.  Jurors,  how  drawn. 

277.  Jurors,    how   to    be   apportioned 

in  the  district. 

278.  Race  or  color  not  to  exclude. 

279.  Venire,  how  issued  and  served. 

280.  Talesmen  for  petit  juries. 

281.  Special  juries. 

282.  Number  of  grand  jurors. 


•ML 

283.  Foreman  of  grand  jury. 

284.  Grand    juries,    when    summoned. 
286.  Discharge  of  grand  juries. 

286.  Jurors  not  to  serve  more  than 

once  a  year. 

287.  Challenges. 

288.  Persons   disqualified    for   service 

on    jury    in    prosecution    for 
polygamy,  etc. 


§  275.  Jurors  to  serve  in  the  courts  of  the  United  States,  in  each  state 
respectively,  shall  have  the  same  qualifications,  subject  to  the  provisions 
hereinafter  contained,  and  be  entitled  to  the  same  exemptions,  as  jurors 
of  the  highest  court  of  law  in  such  state  may  have  and  be  entitled  to  at 
the  time  when  such  jurors  for  service  in  the  courts  of  the  United  States 
are  summoned. 

§  276.  All  such  jurors,  grand  and  petit,  including  those  summoned  dur- 
ing the  session  of  the  court,  shall  be  publicly  drawn  from  a  box  containing, 
at  the  time  of  each  drawing,  the  names  of  not  less  than  three  hundred 
persons,  possessing  the  qualifications  prescribed  in  the  section  last  preced- 
ing, which  names  shall  have  been  placed  therein  by  the  clerk  of  such  court 
and  a  commissioner,  to  be  appointed  by  the  judge  thereof,  or  by  the  judge 
senior  in  commission  in  districts  having  more  than  one  judge,  which  com- 
missioner shall  be  a  citizen  of  good  standing,  residing  in  the  district  in 
which  such  court  is  held,  and  a  well-known  member  of  the  principal  politi- 
cal party  in  the  district  in  which  the  court  is  held  opposing  that  to  which 
the  clerk  may  belong,  the  clerk  and  said  commissioner  each  to  place  one 
name  in  said  box  alternately,  without  reference  to  party  affiliations  until 
the  whole  number  required  shall  be  placed  therein. 

§  277.  Jurors  shall  be  returned  from,  such  parts  of  the  district,  from 
time  to  time,  as  the  court  shall  direct,  so  as  to  be  most  favorable  to  an 
impartial  trial,  and  so  as  not  to  incur  an  unnecessary  expense,  or  unduly 
burden  the  citizens  of  any  part  of  the  district  with  such  service. 

§  278.  No  citizen  possessing  all  other  qualifications  which  are  or  may 
h,e  prescribed  by  law  shall  be  disqualified  for  service  as  grand  or  polit 
juror  in  any  court  of  the  United  States  on  account  of  race,  color,  or 
previous  condition  of  servitude. 


804  APPENDIX. 

§  279.  Writs  of  venire  facias,  when  directed  by  the  court,  shall  issue 
from  the  clerk's  office,  and  shall  be  served  and  returned  by  the  marshal  in 
person,  or  by  his  deputy;  or,  in  case  the  marshal  or  his  deputy  is  not  an 
indifferent  person,  or  is  interested  in  the  event  of  the  cause,  by  such  fit 
person  as  may  be  specially  appointed  for  that  purpose  by  the  court,  who 
shall  administer  to  him  an  oath  that  he  will  truly  and  impartially  serve 
and  return  the  writ.  Any  person  named  in  such  writ  who  resides  else- 
where than  at  the  place  at  which  the  court  is  held,  shall  be  served  by  the 
marshal  mailing  a  copy  thereof  to  such  person  commanding  him  to  attend 
as  a  juror  at  a  time  and  place  designated  therein,  which  copy  shall  be 
registered  and  deposited  in  the  postoffice  addressed  to  such  person  at  his 
usual  postoffice  address.  And  the  receipt  of  the  person  so  addressed  for 
such  registered  copy  shall  be  regarded  as  personal  service  of  such  writ 
upon  such  person,  and  no  mileage  shall  be  allowed  for  the  service  of  such 
person.  The  postage  and  registry  fee  shall  be  paid  by  the  marshal  and 
allowed  him  in  the  settlement  of  his  accounts. 

§  280.  When,  from  challenges  or  otherwise,  there  is  not  a  petit  jury 
to  determine  any  civil  or  criminal  cause,  the  marshal  or  his  deputy  shall, 
by  order  of  the  court  in  which  such  defect  of  jurors  happens,  return 
jurymen  from  the  bystanders  sufficient  to  complete  the  panel;  and  when 
the  marshal  or  his  deputy  is  disqualified  as  aforesaid,  jurors  may  be  so 
returned  by  such  disinterested  person  as  the  court  may  appoint,  and 
such  person  shall  be  sworn,  as  provided  in  the  preceding  section. 

§  281.  When  special  juries  are  ordered  in  any  district  court,  they 
shall  be  returned  by  the  marshal  in  the  same  manner  and  form  as  is  re- 
quired in  such  cases  by  the  laws  of  the  several  states. 

§  282.  Every  grand  jury  impaneled  before  any  district  court  shall 
consist  of  not  less  than  sixteen  nor  more  than  twenty-three  persons.  If 
of  the  persons  summoned  less  than  sixteen  attend,  they  shall  be  placed 
on  the  grand  jury,  and  the  court  shall  order  the  marshal  to  summon, 
either  immediately  or  for  a  day  fixed,  from  the  body  of  the  district,  and 
not  from  the  bystanders,  a  sufficient  number  of  persons  to  complete  the 
grand  jury.  And  whenever  a  challenge  to  a  grand  juror  is  allowed,  and 
there  are  not  in  attendance  other  jurors  sufficient  to  coniplete  the  grand 
jury,  the  court  shall  make  a  like  order  to  the  marshal  to  summon  a  suffi- 
cient number  of  persons  for  that  purpose. 

§  283.  From  the  persons  summoned  and  accepted  as  grand  jurors, 
the  court  shall  appoint  the  foreman,  who  shall  have  power  to  administer 
oaths  and  affirmations  to  witnesses  appearing  before  the  grand  jury. 


THE  JUDICIAL  CODE.  805 

§  284.  No  grand  jury  shall  be  summoned  to  attend  any  district  court 
unless  the  judge  thereof,  in  his  own  discretion  or  upon  a  notification  by 
the  district  attorney  that  such  jury  will  be  needed,  orders  a  venire  to 
issue  therefor.  If  the  United  States  attorney  for  any  district  which  has 
a  city  or  borough  containing  at  least  three  hundred  thousand  inhabitants 
shall  certify  in  writing  to  the  district  judge,  or  the  senior  district  judge 
of  the  district,  that  the  exigencies  of  the  public  service  require  it,  the 
judge  may,  in  his  discretion,  also  order  a  venire  to  issue  for  a  second 
grand  jury.  And  said  court  may  in  term  order  a  grand  jury  to  be  sum- 
moned at  such  time,  and  to  serve  such  time  as  it  may  direct,  whenever, 
in  its  judgment,  it  may  be  proper  to  do  so.  But  nothing  herein  shall 
operate  to  extend  beyond  the  time  permitted  by  law  the  imprisonment 
before  indictment  found  of  a  person  accused  of  a  crime  or  offense,  or 
the  time  during  which  a  person  so  accused  may  be  held  under  recog- 
nizance before  indictment  found. 

§  285.  The  district  courts,  the  district  courts  of  the  territories,  and 
the  supreme  court  of  the  District  of  Columbia  may  discharge  their  grand 
juries  whenever  they  deem  a  continuance  of  the  sessions  of  such  juries 
unnecessary. 

§  286.  No  person  shall  serve  as  a  petit  juror  in  any  district  court 
more  than  one  term  in  a  year;  and  it  shall  be  sufficient  cause  of  challenge 
to  any  juror  called  to  be  sworn  in  any  cause  that  he  has  been  summoned 
and  attended  said  court  as  a  juror  at  any  term  of  said  court  held  within 
one  year  prior  to  the  time  of  such  challenge. 

§  287.  When  the  offense  charged  is  treason  or  a  capital  offense,  the 
defendant  shall  be  entitled  to  twenty  and  the  United  States  to  six 
peremptory  challenges.  On  the  trial  of  any  other  felony,  the  defendant 
shall  be  entitled  to  ten  and  the  U.nited  States  to  six  peremptory  chal- 
lenges ;  and  in  all  other  cases,  civil  and  criminal,  each  party  shall  be  en- 
titled to  three  peremptory  challenges;  and  in  all  cases  where  there  are 
several  defendants  or  several  plaintiffs,  the  parties  on  each  side  shall  be 
deemed  a  single  party  for  the  purposes  of  all  challenges  under  this  sec- 
tion. All  challenges,  whether  to  the  array  or  panel,  or  to  individual 
jurors  for  cause  or  favor,  shall  be  tried  by  the  court  without  the  aid  of 
triers. 

§  288.  In  any  prosecution  for  bigamy,  polygamy,  or  unlawful  cohabi- 
tation, under  any  statute  of  the  United  States,  it  shall  be  sufficient  cause 
of  challenge  to  any  person  drawn  or  summoned  as  a  juryman  or 
talesman — 


806  APPENDIX. 

First,  that  he  is  or  has  been  living  in  the  practice  of  bigamy,  poly- 
gamy, or  unlawful  cohabitation  with  more  than  one  woman,  or  that  he 
is  or  has  been  guilty  of  an  offense  punishable  either  by  sections  one  or 
three  of  an  act  entitled  "An  Act  to  Amend  Section  Fifty-Three  Hundred 
and  Fifty-Two  of  the  Revised  Statutes  of  the  United  States,  in  Refer- 
ence to  Bigamy,  and  for  Other  Purposes,"  approved  March  twenty- 
second,  eighteen  hundred  and  eighty-two,  or  by  section  fifty-three  hun- 
dred and  fifty-two  of  the  Revised  Statutes  of  the  United  States,  or  the 
act  of  July  first,  eighteen  hundred  and  sixty-two,  entitled  "An  Act  to 
Punish  and  Prevent  the  Practice  of  Polygamy  in  the  Territories  of  the 
United  States  and  Other  Places,  and  Disapproving  and  Annulling  Cer- 
tain Acts  of  the  Legislative  Assembly  of  the  Territory  of  Utah";  or 

Second,  that  he  believes  it  right  for  a  man  to  have  more  than  one 
living  and  undivorced  wife  at  the  same  time,  or  to  live  in  the  practice 
of  cohabiting  with  more  than  one  woman. 

Any  person  appearing  or  offered  as  a  juror  or  talesman,  and  chal- 
lenged on  either  of  the  foregoing  grounds,  may  be  questioned  on  his  oath 
as  to  the  existence  of  any  such  cause  of  challenge;  and  other  evidence 
may  be  introduced  bearing  upon  the  question  raised  by  such  challenge; 
and  this  question  shall  be  tried  by  the  court. 

But  as  to  the  first  ground  of  challenge  before  mentioned,  the  person 
challenged  shall  not  be  bound  to  answer  if  he  shall  say  upon  his  oath 
that  he  declines  on  the  ground  that  his  answer  may  tend  to  criminate 
himself;  and  if  he  shall  answer  as  to  said  first  ground,  his  answer  shall 
not  be  given  in  evidence  in  any  criminal  prosecution  against  him  for  any 
offense  above  named;  but  if  he  declines  to  answer  on  any  ground,  lie 
shall  be  rejected  as  incompetent. 


THE  JUDICIAL  CODE. 


807 


CHAPTER  THIRTEEN. 

GENERAL  PROVISIONS. 


sm 

289.  Circuit     courts     abolished;     rec- 

ords  of   to   be  transferred   to 
district  courts. 

290.  Suits   pending   in   circuit    courts 

to   be   disposed   of  in    district 
courts. 

291.  Powers    and    duties    of    circuit 

courts    imposed    upon    district 
courts. 

292.  References    to    laws    revised    in 

this    act    deemed    to    refer   to 
sections  of  act. 


SEC. 

293.  Sections   1   to   5,   Revised   Stat- 

utes, to  govern  construction  of 
this  act. 

294.  Laws  revised   in  this  act  to  be 

construed    as   continuations   of 
existing  laws. 

295.  Inference  of  legislative  construc- 

tion not  to  be  drawn  by  reason 
of  arrangement  of  sections. 

296.  Act  may  be  designated  aa  "The 

Judicial  Code." 


§289.  (New.)  The  circuit  courts  of  the  United  States,  upon  the  taking 
effect  of  this  act,  shall  be,  and  hereby  are,  abolished ;  and  thereupon,  on  said 
date,  the  clerks  of  said  courts  shall  deliver  to  the  clerks  of  the  district 
courts  of  the  United  States  for  their  respective  districts  all  the  journals, 
dockets,  books,  files,  records,  and  other  books  and  papers  of  or  belong- 
ing to  or  in  any  manner  connected  with  said  circuit  courts;  and  shall 
also  on  said  date  deliver  to  the  clerks  of  said  district  courts  all  moneys, 
from  whatever  source  received,  then  remaining  in  their  hands  or  under 
their  control  as  clerks  of  said  circuit  courts,  or  received  by  them  by 
virtue  of  their  said  offices.  The  journals,  dockets,  books,  files,  records, 
and  other  books  and  papers  so  delivered  to  the  clerks  of  the  several  dis- 
trict courts  shall  be  and  remain  a  part  of  the  official  records  of  said  dis- 
trict courts,  and  copies  thereof,  when  certified  under  the  hand  and  seal 
of  the  clerk  of  the  district  court,  shall  be  received  as  evidence  equally 
wiih  the  originals  thereof;  and  the  clerks  of  the  several  district  courts 
shall  have  the  same  authority  to  exercise  all  the  powers  and  to  perform 
all  the  duties  with  respect  thereto  as  the  clerks  of  the  several  circuit  courts 
had  prior  to  the  taking  effect  of  this  act.  (36  Stats.  1167.) 

§  290.  (New.)  All  suits  and  proceedings  pending  in  said  circuit  courts 
on  the  date  of  the  taking  effect  of  this  act,  whether  originally  brought 
therein  or  certified  thereto  from  the  district  courts,  shall  thereupon  and 
thereafter  be  proceeded  with  and  disposed  of  in  the  district  courts  in 
the  same  manner  and  with  the  same  effect  as  if  originally  begun  therein, 
the  record  thereof  being  entered  in  the  records  of  the  circuit  courts  so 
transferred  as  above  provided.  (36  Stats.  1167.) 


808 


APPENDIX. 


§  291.  Wherever,  in  any  law  not  embraced  within  this  act,  any  refer- 
ence is  made  to,  or  any  power  or  duty  is  conferred  or  imposed  upon,  the 
circuit  courts,  such  reference  shall,  upon  the  taking  effect  of  this  act, 
be  deemed  and  held  to  refer  to,  and  to  confer  such  power  and  impose 
such  duty  upon,  the  district  courts. 

§  292.  Wherever,  in  any  law  not  contained  within  this  act,  a  refer- 
ence is  made  to  any  law  revised  or  embraced  herein,  such  reference, 
upon  the  taking  effect  hereof,  shall  be  construed  to  refer  to  the  section 
of  this  act  into  which  has  been  carried  or  revised  the  provision  of  law 
to  which  reference  is  so  made. 

§  293.  The  provisions  of  sections  one  to  five,  both  inclusive,  of  the 
Revised  Statutes,  shall  apply  to  and  govern  the  construction  of  the  pro- 
visions of  this  act.  The  words  "this  title,"  wherever  they  occur  herein, 
shall  be  construed  to  mean  this  act. 

§  294.  The  provisions  of  this  act,  so  far  as  they  are  substantially  the 
same  as  existing  statutes,  shall  be  construed  as  continuations  thereof, 
and  not  as  new  enactments,  and  there  shall  be  no  implication  of  a  change 
of  intent  by  reason  of  a  change  of  words  in  such  statute,  unless  such 
change  of  intent  shall  be  clearly  manifest. 

§  295.  The  arrangement  and  classification  of  the  several  sections  of 
this  act  have  been  made  for  the  purpose  of  a  more  convenient  and 
orderly  arrangement  of  the  same,  and  therefore  no  inference  or  presump- 
tion of  a  legislative  construction  is  to  be  drawn  by  reason  of  the  chap- 
ter under  which  any  particular  section  is  placed. 

§  296.  This  act  may  be  designated  and  cited  as  "The  Judicial  Code." 
(36  Stats.  1168.) 


CHAPTER  FOURTEEN. 


REPEALING  PROVISIONS. 


RFC. 

297.  Sections,  acts,  and  parts  of  acts 
repealed. 

2&8.  Repeal  not  to  affect  tenure  of 
office,  or  salary,  or  compensa- 
tion of  incumbent's,  etc. 

299.  Accrued  rights,  etc.,  not  af- 
fected. 


300.  Offenses   committed,   and  penal- 

ties, forfeitures,  and  liabili- 
ties incurred,  how  to  be  prose- 
cuted and  enforced. 

301.  Date  this  act  shall  be  effective. 


§  297.     The  following  sections  of  the  Revised  Statutes  and  acts  and 
parts  of  acts  are  hereby  repealed : 


THE  JUDICIAL  CODE.  800 

Sections  five  hundred  and  thirty  to  five  hundred  and  sixty,  both  inclu- 
sive; sections  five  hundred  and  sixty-two  to  five  hundred  and  sixty-four, 
both  inclusive;  sections  five  hundred  and  sixty-seven  to  six  hundred  and 
twenty-seven,  both  inclusive;  sections  six  hundred  and  twenty-nine  to 
six  hundred  and  forty-seven,  both  inclusive;  sections  six  hundred  and 
fifty  to  six  hundred  and  ninety-seven,  both  inclusive;  section  six  hundred 
and  ninety-nine;  sections  seven  hundred  and  two  to  seven  hundred  and 
fourteen,  both  inclusive;  sections  seven  hundred  and  sixteen  to  seven 
hundred  and  twenty,  both  inclusive;  section  seven  hundred  and  twenty- 
three;  sections  seven  hundred  and  twenty-five  to  seven  hundred  and 
forty-nine,  both  inclusive;  sections  eight  hundred  to  eight  hundred  and 
twenty-two,  both  inclusive;  sections  ten  hundred  and  forty-nine  to  ten 
hundred  and  eighty-eight,  both  inclusive;  sections  ten  hundred  and 
ninety-one  to  ten  hundred  and  ninety-three,  both  inclusive,  of  the 
Revised  Statutes. 

"An  Act  to  Determine  the  Jurisdiction  of  Circuit  Courts  of  the  United 
States  and  to  Regulate  the  Removal  of  Causes  from  State  Courts,  and 
for  Other  Purposes,"  approved  March  third,  eighteen  hundred  and 
seventy-five. 

Section  five  of  an  act  entitled  "An  Act  to  Amend  Section  Fifty-Three 
Hundred  and  Fifty-Two  of  the  Revised  Statutes  of  the  United  States, 
in  Reference  to  Bigamy,  and  for  Other  Purposes,"  approved  March 
twenty-second,  eighteen  hundred  and  eighty-two;  but  sections  six,  seven, 
and  eight  of  said  act,  and  sections  one,  two,  and  twenty-six  of  an  act 
entitled  "An  Act  to  Amend  an  Act  Entitled  'An  Act  to  Amend  Section 
Fifty-Three  Hundred  and  Fifty-Two  of  the  Revised  Statutes  of  the 
United  States,  in  Reference  to  Bigamy,  and  for  Other  Purposes," 
Approved  March  Twenty-second,  Eighteen  Hundred  and  Eighty-Two," 
approved  March  third,  eighteen  hundred  and  eighty-seven  are  hereby 
continued  in  force. 

"An  Act  to  Afford  Assistance  and  Relief  to  Congress  and  Executive 
Departments  in  the  Investigation  of  Claims  and  Demands  against  the 
Government,"  approved  March  third,  eighteen  hundred  and  eighty -three. 

"An  Act  Regulating  Appeals  from  the  Supreme  Court  of  the  District 
of  Columbia  and  the  Supreme  Courts  of  the  Several  Territories," 
approved  March  third,  eighteen  hundred  and  eighty-five. 

"An  Act  To  Provide  for  the  Bringing  of  Suits  against  the  Govern- 
ment of  the  United  States,"  approved  March  third,  eighteen  hundred 
and  eighty-seven,  except  sections  four,  five,  six,  seven,  and  ten  thereof. 


810  APPENDIX. 

Sections  one,  two,  three,  four,  six,  and  seven  of  an  act  entitled  "An 
Act  to  Correct  the  Enrollment  of  an  Act  Approved  March  Third,  Eigh- 
teen Hundred  and  Eighty-Seven,  Entitled  'An  Act  to  Amend  Sections 
One,  Two,  Three,  and  Ten  of  an  Act  to  Determine  the  Jurisdiction  of 
the  Circuit  Courts  of  the  United  States,  and  to  Regelate  the  Removal  of 
Causes  from  the  State  Courts,  and  for  Other  Purposes, '  approved  March 
Third,  Eighteen  Hundred  and  Seventy-Five,"  approved  August  thir- 
teenth, eighteen  hundred  and  eighty-eight. 

"An  Act  to  Withdraw  from  the  Supreme  Court  Jurisdiction  of  Criminal 
Cases  not  Capital  and  Confer  the  Same  on  the  Circuit  Courts  of  Appeals," 
approved  January  twentieth,  eighteen  hundred  and  ninety-seven. 

"An  Act  to  Amend  Sections  One  and  Two  of  the  Act  of  March  Third, 
Eighteen  Hundred  and  Eighty-Seven,  Twenty-Fourth  Statutes  at  Large, 
Chapter  Three  Hundred  and  Fifty-Nine, "  approved  June  twenty-seventh, 
eighteen  hundred  and  ninety-eight. 

"An  Act  to  Amend  the  Seventh  Section  of  the  Act  Entitled  'An  Act 
to  Establish  Circuit  Courts  of  Appeals  and  to  Define  and  Regulate  in 
Certain  Cases  the  Jurisdiction  of  the  Courts  of  the  United  States,  and 
for  Other  Purposes,'  Approved  March  Third,  Eighteen  Hundred  and 
Ninety-One,  and  the  Several  Acts  Amendatory  Thereto, "  approved  April 
fourteenth,  nineteen  hundred  and  six. 

All  acts  and  parts  of  acts  authorizing  the  appointment  of  United 
States  circuit  or  district  judges,  or  creating  or  changing  judicial  cir- 
cuits, or  judicial  districts  or  divisions  thereof,  or  fixing  or  changing  the 
times  or  places  of  holding  court  therein,  enacted  prior  to  February  first, 
nineteen  hundred  and  eleven. 

Sections  one,  two,  three,  four,  five,  the  first  paragraph  of  section  six, 
and  section  seventeen  of  an  act  entitled  "An  Act  to  Create  a  Commerce 
Court,  and  to  Amend  an  Act  Entitled  'An  Act  to  Regulate  Commerce,' 
Approved  February  Fourth,  Eighteen  Hundred  and  Eighty-Seven,  as 
Heretofore  Amended,  and  for  Other  Purposes,"  approved  June  eighteenth, 
nineteen  hundred  and  ten. 

Also  other  acts  and  parts  of  acts,  in  so  far  as  they  are  embraced 
within  and  superseded  by  this  act,  are  hereby  repealed;  the  remaining 
portions  thereof  to  be  and  remain  in  force  with  the  same  effect  and  to 
the  same  extent  as  if  this  act  had  not  been  passed.  (36  Stats.  1168. 
In  general.  United  States  v.  Winslow,  227  U.  S.  202,  57  L.  Ed,  481,  33 
Sup.  Ct.  253.) 

§  298.  The  repeal  of  existing  laws  providing  for  the  appointment  of 
fudges  and  other  officers  mentioned  in  this  act,  or  affecting  the  organ- 


THE  JUDICIAL  CODE.  811 

ization  of  the  courts,  shall  not  be  construed  to  affect  the  tenure  of  office 
of  the  incumbents  (except  the  office  be  abolished),  but  they  shall 
continue  to  hold  their  respective  offices  during  the  terms  for  which 
appointed,  unless  removed  as  provided  by  law ;  nor  (except  the  office  be 
abolished)  shall  such  repeal  affect  the  salary  or  fees  or  compensation 
of  any  officer  or  person  holding  office  or  position  by  virtue  of  any  law. 
(36  Stats.  1169.  In  general,  United  States  v.  New  Departure  Mfg.  Co., 
195  Fed.  778.) 

§  299.  The  repeal  of  existing  laws,  or  the  amendments  thereof,  em- 
braced in  this  act,  shall  not  affect  any  act  done,  or  any  right  accruing 
or  accrued,  or  any  suit  or  proceeding,  including  those  pending  on  writ 
of  error,  appeal,  certificate,  or  writ  of  certiorari,  in  any  appellate  court 
referred  to  or  included  within,  the  provisions  of  this  act,  pending  at  the 
time  of  the  taking  effect  of  this  act,  but  all  such  suits  and  proceedings, 
and  suits  and  proceedings  for  causes  arising  or  acts  done  prior  to  such 
date,  may  be  commenced  and  prosecuted  within  the  same  time,  and  with 
the  same  effect,  as  if  said  repeal  or  amendments  had  not  been  made. 
(36  Stats.  1169.  In  general,  Washington  Home  for  Incurables  v.  Am. 
Security  Co.,  224  U.  S.  486,  56  L.  Ed.  854,  32  Sup.  Ct.  554.) 

§  300.  All  offenses  committed,  and  all  penalties,  forfeitures,  or  lia- 
bilities incurred  prior  to  the  taking  effect  hereof,  under  any  law  em- 
braced in,  amended,  or  repealed  by  this  act,  may  be  prosecuted  and 
punished,  or  sued  for  and  recovered,  in  the  district  courts,  in  the  same 
manner  and  with  the  same  effect  as  if  this  act  had  not  been  passed. 
(36  Stats.  1169.  In  general,  In  re  Steiner  et  al.,  195  Fed.  299. 

§  301.     This  act  shall  take  effect  and  be  in  force  on  and  after  January 
first,  nineteen  hundred  and  twelve. 
Approved  March  3,  1911.     (36  Stats.  1169.) 


INSTRUCTIONS  AS   TO   APPLICATIONS  FOR  WRITS  OF  CER- 

TIORARI  UNDER  ACTS  OF  MARCH  3,  1891, 

AND  SEPTEMBER  6,  1916. 

The   following  are   the   requirements   on   applications   for   writs   of 
certiorari: 

Petitions   are  docketed  in  this  court  as  ,  Petitioner,  7. , 

Respondent. 

Before  the  petition  will  be  docketed  there  must  be  furnished  this 
office: 

(1)  An  original  petition  with  written  signature  of  counsel. 

(2)  A  certified  copy  of  the  transcript  of  the  record,  including  all 
proceedings  in  the  United  States  Circuit  Court  of  Appeals  or  other 
appellate  court. 

(3)  An  order  for  appearance  of  counsel  for  petitioner,  signed  by  a 
member  of  the  bar  of  this  court. 

(4)  A  deposit  of  twenty-five  ($25)  dollars  on  account  of  costs. 
Before  submission  of  the  petition  there  must  be  furnished: 

(1)  Proof  of  service  of  notice  of  date  fixed  for  submission  and  copies 
of  petition  and  brief  upon  counsel  for  the  respondent.     Notice  of  the 
date  of  submission  of  the  petition,  together  with  a  copy  of  the  petition 
and  brief,  if  any,  in  support  of  the  same  must  be  served  on  counsel 
for  the  respondent  at  least  two  weeks  before  such  date  except  where 
the  counsel  to  be  notified  resides  west  of  the  Rocky  Mountains,  in  which 
case  the  time  shall  be  at  least  three  weeks. 

(2)  Thirty  (30)  printed  copies  of  the  petition  and  brief  in  support 
of  petition,  if  any  such  brief  is  to  be  filed,  under  one  cover. 

(3)  At  least  nine  (9)   uncertified  copies  of  the  record,  which  must 
contain  all  of  the  proceedings  in  the  United  States  Circuit  Court  of 
Appeals  or  other  appellate  court  as  well  as  those  in  the  trial  court. 
These  copies  may  be  made  up  by  using  copies  of  the  record  as  printed 
for  the  appellate  court  and  adding  thereto  printed  copies  of  the  pro- 
ceedings in  that  court.     If  a  sufficient  number  of  records  thus  made 
up  cannot  be  obtained,  making  it  necessary  to  reprint  the  record  for 
use  on  the  hearing  of  the  petition,  fifty   (50)   copies  must  be  printed 
under  my  supervision  in  order  that,  should  the  petition  be  granted, 
there  may  be  a  sufficient  number  for  use  on  the  final  hearing. 

Monday  being  motion   day,   some  Monday   must  be   fixed   upon   by 
counsel   for  petitioner  for   the   submission   of   the  petition.    No   oral 

(813) 


814  APPENDIX. 

argument  is  permitted  on  such  petitions  but  they  must  be  called  up  and 
submitted  in  open  court  by  counsel  for  petitioner,  or  by  some  attorney 
in  his  behalf. 

If  a  respondent  desires  to  oppose  a  petition,  thirty  (30)  copies  of  a 
brief  for  such  respondent  must  be  filed.  These  briefs  must  bear  tho 
•name  of  a  member  of  the  bar  of  this  court,  who  should  also  enter  an 
appearance  for  the  respondent.  It  is  not  necessary,  however,  for  such 
counsel  to  be  present  in  court  when  the  petition  is  submitted. 

All  papers  in  the  case  must  be  filed  not  later  than  the  Saturday 
preceding  the  Monday  fixed  for  the  submission  of  the  petition. 

JAMES  D.  MAKER, 
Clerk,  Supreme  Court  of  the  United  States. 


File  No. . 

Supreme   Court    of   the  United   States. 
No.  ,  October  Term,  191—. 


vs. 


The  clerk  will  enter  my  appearance  as  counsel  for  the 

(Name) 

(P.  O.  Address)  - 

NOTE. — Must  be  signed  by  a  member  of  the  bar  of  the  supreme  court  United 
States.     Individual  and  not  firm  names  must  be  signed. 


EULES  OF  THE  SUPBEME  COURT 
OF  THE  UNITED  STATES. 

Promulgated  December  22, 1911. 


With  Amendments  of  February  26,  April  1,  and  June  10,  1912,  March 
20  and  June  12,  1916,  and  March  26,  1917. 


Index  to  these  Rules  at  the  end  thereof. 


a  NIL!  n  \    J        I  n 


RULES  OF  THE  SUPREME  COURT  OF  THE 
UNITED  STATES. 


CLERK. 

1.  The  clerk  of  this  court  shall  reside  and  keep  the  office  at  the  seat 
of  the  National  Government,  and  he  shall  not  practice,  either  as  attor- 
ney or  counsellor,  in  this  court,  or  in  any  other  court,  while  he  shall 
continue  to  be  clerk  of  this  court. 

2.  The  clerk  shall  not  permit  any  original  record  or  paper  to  be  taken 
from  the  courtroom,  or  from  the   office,  without  an  order  from  the 
court,  except  as  provided  by  Rule  10. 

2. 

ATTORNEYS  AND  COUNSELLORS. 

1.  It  shall  be  requisite  to  the  admission  of  attorneys  or  counsellors 
lo  practice  in  this  court,  that  they  shall  have  been  such  for  three  years 
past  in  the  highest  courts  of  the  States  to  which  they  respectively  belong, 
an.d  that  their  private  and  professional  characters  shall  appear  to  be  fair. 

2.  They  shall  respectively  take  and  subscribe  the  following  oath  or 
affirmation,  viz : 

I, ,  do  solemnly  swear  (or  affirm)  that  I  will  demean  myself, 

as  an  attorney  and  counsellor  of  this  court,  uprightly,  and  according 
to  law;  and  that  I  will  support  the  Constitution  of  the  United  State*. 

3. 

PRACTICE. 

This   court  considers   the   former  practice  of  the  courts  of  king's 
bench  and  of  chancery,  in  England,  as  affording  outlines  for  the  practice 
of  this  court ;  and  will,  from  time  to  time,  make  such  alterations  therein 
as  circumstances  may  render  necessary. 
Mww»l— 53  (817) 


818  APPENDIX. 


BILL  OF  EXCEPTIONS. 

. 

The  judges  of  the  district  courts  in  allowing  bills  of  exceptions  shall 
give  effect  to  the  following  rules: 

1.  No  bill  of  exceptions  shall  be  allowed  which  shall  contain  the 
charge  of  the  court  at  large  to  the  jury  in  trials  at  common  law,  upon 
any  general   exception  to  the  whole  of  such   charge.    But  the  party 
excepting  shall  be  required  to  state  distinctly  the  several  matters  of  law 
in  such  charge  to  which  he  excepts;  and  those  matters  of  law,  and 
those  only,  shall  be  inserted  in  the  bill  of  exceptions  and  allowed  by 
the  court. 

2.  Only  so  much  of  the  evidence  shall  be  embraced  in  a  bill  of  excep- 
tions as  may  be  necessary  to  present  clearly  the  questions  of  law  in- 
volved in  the  rulings  to  which  exceptions  are  reserved,  and  such  evidence 
as  is  embraced  therein  shall  be  set  forth  in  condensed  and  narrative 
form,  save  as  a  proper  understanding  of  the  questions  presented  may 
require  that  parts  of  it  be  set  forth  otherwise. 

5. 

PROCESS. 

1.  All  process  of  this  court  shall  be  in  the  name  of  the  President  of 
the  United  States,  and  shall  contain  the  Christian  names,  as  well  as 
the  surnames,  of  the  parties. 

2.  When  process  at  common  law  or  in  equity  shall  issue  against  a 
State,  the  same  shall  be  served  on  the  governor,  or  chief  executive 
magistrate,  and  attorney-general  of  such  State. 

3.  Process  of  subpoena,  issuing  out  of  this  court,  in  any  suit  in  equity, 
shall  be  served  on  the  defendant  sixty  days  before  the  return  day  of 
the  said  process ;  and  if  the  defendant,  on  such  service  of  the  subpoena, 
shall  not  appear  at  the  return  day,  the  complainant  shall  be  at  liberty 
to  proceed  ex  parte. 


MOTIONS. 

--, ••:•.• -r/Trt'j    rroo6 

1.  All  motions  to  the  court  shall  be  reduced  to  writing,  and  shall 
contain  a  brief  statement  of  the  facts  and  objects  of  the  motion. 

2.  Forty-five  minutes  on  each  side  shall  be  allowed  to  the  argument 
of  a  motion,  and  no  more,  without  special  leave  of  the  court,  granted 
before  the  argument  begins. 


BULKS  OP  THE  SUPREME  COURT.  819 

3.  No  motion  to  dismiss,  except  on  special  assignment  by  the  court, 
shall  be  heard,  unless  previous  notice  has  been  given  to  the  adverse 
party,  or  the  counsel  or  attorney  of  such  party. 

4.  All  motions  to  dismiss  writs  of  error  and  appeals,  except  motions 
to  docket  and  dismiss  under  Rule  9,  must  be  submitted  in  the  first 
instance  on  printed  briefs  or  arguments.    If  the  court  desires  further 
argument  on  that  subject,  it  will  be  ordered  in  connection  with   the 
hearing  on  the  merits.     The  party  moving  to  dismiss  shall  serve  notice 
of  the  motion,  with  a  copy  of  his  brief  of  argument,  on  the  counsel 
for  plaintiff  in  error  or  appellant  of  record  in  this  court,  at  least  three 
weeks  before  the  time  fixed  for  submitting  the  motion,  in  all  cases 
except   where   the   counsel   to  be   notified  resides   west  of   the   Rocky 
Mountains,  in  which  case  the  notice  shall  be  at  least  thirty  days.    AJB- 
davits  of  the  deposit  in  the  mail  of  the  notice  and  brief  to  the  proper 
address  of  the  counsel  to  be  served,  duly  post-paid,  at  such  time  as  to 
reach  him  by  due  course  of  mail,  the  three  weeks  or  thirty  days  before 
the  time  fixed  by  the  notice,  will  be  regarded  as  prima  facie  evidence 
of  service  on  counsel  who  reside  without  the  District  of  Columbia.     On 
proof  of  such  service,  the  motion  will  be  considered,  unless,  for  satis- 
factory reasons,  further  time  be  given  by  the  court  to  either  party. 

5.  The  court  in  any  pending  cause  will  receive  a  motion  to  affirm  on 
the  ground  that  it  is  manifest  that  the  writ  or  appeal  was  taken  for 
delay  only,  or  that  the  questions  on  which  the  decision  of  the  cause 
depend  are  so  frivolous  as  not  to  need  further  argument.     The  same 
procedure  shall  apply  to  and  control  such  motions  as  is  provided  for 
in  cases  of  motions  to  dismiss  under  paragraph  4  of  this  rule. 

6.  Although  the  court  upon  consideration  of  a  motion  to  dismiss  or 
a  motion  to  affirm  may  refuse  to  grant  the  motion,  it  may  nevertheless, 
if  the  conclusion  is  arrived  at  that  the  case  is  of  such  a  character  as 
not  to  justify  extended  argument,  order  the  cause  transferred  for  hear- 
ing to  a  summary  docket.    The  hearing  of  the  causes  on  such  docket 
will  be  expedited,  the  court  providing  from  time  to  time  for  such  speedy 
disposition  of  the  docket  as  the  regular  order  of  business  may  permit, 
and  on  the  hearing  of  such  causes  one-half  hour  will  be  allowed  each 
side  for  oral  argument. 

7.  The  court  will  not  hear  arguments  on  Saturday  (unless  for  special 
cause  it  shall  order  to  the  contrary),  but  will  devote  that  day  to  the 
other  business  of  the  court.    The  motion  day  shall  be  Monday  of  each 
week;  and  motions  not  required  by  the  rules  of  the  court  to  be  put  on 
the  docket  shall  be  entitled  to  preference  immediately  after  the  rcn.linu: 
of  opinions,  if  such  motions  shall  be  made  before  the  court  shall  have 
entered  upon  the  hearing  of  a  case  upon  the  docket. 


820  APPENDIX. 

/ 

7. 

LAW  LIBRARY. 

1.  During  the  session  of  the  court,  any  gentleman  of  the  bar  having 
a  case  on  the  docket,  and  wishing  to  use  any  book  or  books  in  the  law 
library,  shall  be  at  liberty,  upon  application  to  the  clerk  of  the  court, 
to  receive  an  order  to  take  the  same   (not  exceeding  at  any  one  time 
three)  from  the  library,  he  being  thereby  responsible  for  the  due  return 
of  the  same  within  a  reasonable  time,  or  when  required. by  the  clerk. 
And  in  case  the  same  shall  not  be  so  returned,  the  party  receiving  the 
same  shall  be  responsible  for  and  forfeit  and  pay  twice  the  value  thereof, 
and  also  one  dollar  per  day  for  each  day's  detention  beyond  the  limited 
time. 

2.  The  clerk  shall  deposit  in  the  law  library,  to  be  there  carefully 
preserved,  one  copy  of  the  printed  record  in  every  case  submitted  to 
the  court  for  its  consideration,  and  of  all  printed  motions,  briefs,  or 
arguments  filed  therein. 

3.  The  marshal  shall  take  charge  of  the  books  of  the  court,  together 
with  such  of  the  duplicate  law  books  as  Congress  may  direct  to  be 
transferred  to  the  court,  and  arrange  them  in  the  conference  room, 
which  he  shall  have  fitted  up  in  a  proper  manner;  and  he  shall  not 
permit  such  books  to  be  taken  therefrom  by  any  one  except  the  justices 
of  the  court. 

8. 

WRIT  OP  ERROR  AND  APPEAL,  RETURN  AND  RECORD. 

1.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  directed 
shall  make  return  of  the  same,  by  transmitting  a  true  copy  of  the  record, 
and  of  the  assignment  of  errors,  and  of  all  proceedings  in  the  case, 
under  his  hand  and  the  seal  of  the  court. 

In  order  to  enable  the  Clerk  to  perform  such  duty  and  for  the  pur- 
pose of  reducing  the  size  of  transcripts  of  record  in  cases  brought  to 
this  Court  by  appeal  or  writ  of  error,  by  eliminating  all  papers  not 
necessary  to  the  consideration  of  the  questions  to  be  reviewed,  it  shall 
be  the  duty  of  the  appellant  or  plaintiff  in  error  or  his  attorney  to  file 
with  the  clerk  of  the  lower  court,  together  with  proof  or  acknowledg- 
ment of  service  of  a  copy  on  the  appellee  or  defendant  in  error,  or  his— 
counsel,  a  praecipe  which  shall  indicate  the  portions  of  the  record  to 
be  incorporated  into  the  transcript  of  the  record  on  such  appeal  or 
writ  of  error.  Should  the  appellee  or  defendant  in  error,  or  his  counsel, 
desire  additional  portions  of  the  record  incorporated  into  the  transcript 


RULES  OF  THE  SUPREME  CO UBT.  "L'l 

of  the  record  to  be  filed  in  this  Court,  he  shall  file  with  the  clerk  of 
the  lower  court  his  praecipe  also,  within  ten  days  thereafter,  (unless 
the  time  shall  be  enlarged  by  a  judge  of  the  lower  court  or  by  a  Justice 
of  this  Court),  indicating  such  additional  portions  of  the  record  desired 
by  him. 

The  clerk  of  the  lower  court  shall  transmit  to  this  Court  as  the  tran- 
script of  the  record  in  the  ease  only  the  portions  of  the  record  below 
designated  by  both  parties  as  above  provided. 

The  parties  or  their  counsel,  however,  may  agree  by  written  stipula- 
tion to  be  filed  with  the  clerk  of  the  lower  court  the  portions  of  the 
record  which  shall  constitute  the  transcript  of  record  on  appeal  or  writ 
of  error,  and  the  clerk  in  such  case  shall  transmit  only  the  papers 
designated  in  such  stipulation. 

If  this  Court  shall  find  that  portions  of  the  record  unnecessary  to  a 
proper  presentation  of  the  case  have  been  incorporated  into  the  tran- 
script by  either  party,  the  Court  may  order  that  the  whole  or  any  part 
of  the  Clerk's  fee  for  supervising  the  printing  and  of  the  cost  of  printing 
the  record  be  paid  by  the  offending  party. 

2.  In  all  cases  brought  to  this  court,  by  writ  of  error  or  appeal,  to 
review  any  judgment  or  decree,  the  clerk  of  the  court  by  which  such 
judgment  or  decree  was  rendered  shall  annex  to  and  transmit  with  the 
record  a  copy  of  the  opinion  or  opinions  filed  in  the  case. 

3.  No  case  will  be  heard  until  a  complete  record,  containing  in  itself, 
and  not  by  reference,  all  the  papers,  exhibits,  depositions,  and  other 
proceedings  which  are   necessary  to  the   hearing  in  this  court,  shall 
be  filed. 

4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of  the 
presiding  judge  in  any  district  court,  that  original  papers  of  any  kind 
should  be  inspected  in  this  court  upon  writ  of  error  or  appeal,  such 
presiding  judge   may  make  such  rule  or  order  for  the  safe-keeping, 
transporting,  and  return  of  such  original  papers  as  to  him  may  seem 
proper,  and  this  court  will  receive  and  consider  such  original  papers 
in  connection  with  the  transcript  of  the  proceedings. 

5.  All  appeals,  writs  of  error,  and  citations  must  be  made  returnable 
not  exceeding  thirty  days  from  the  day  of  signing  the  citation,  whether 
the  return  day  fall  in  vacation  or  in  term  time,  and  bo  served  before 
the  return  day,  except  in  writs  of  error  and  appeals  from  California, 
Oregon,  Nevada,  Washington,  New   Mexico,  Utah,   Arizona.   Montana, 
Wyoming,  North  Dakota,   South   Dakota,   Alaska,   Idaho,  Hawaii   and 
Porto  Rico,  when  the  time  shall  be  extended  to  sixty  days  and  from 
the  Philippine  Islands  to  one  hundred  and  twenty  days. 


822  APPENDIX. 

6.  The  record  in  cases  of  admiralty  and  maritime  jurisdiction,  when 
under  the  requirements  of  law  the  facts  have  been  found  in  the  court 
below,  and  the  power  of  review  is  limited  to  the  determination  of 
questions  of  law  arising  on  the  record,  shall  be  confined  to  the  pleadings, 
the  findings  of  fact,  and  conclusions  of  law  thereon,  the  bills  of  excep- 
tions, the  final  judgment  or  decree,  and  such  interlocutory  orders  and 
decrees  as  may  be  necessary  to  a  proper  review  of  the  case. 

9. 

DOCKETING  CASES. 

1.  It  shall  be  the  duty  of  the  plaintiff  in  error  or  appellant  to  docket 
the  case  and  file  the  record  thereof  with  the  clerk  of  this  court  by  or 
before  the  return  day,  whether  in  vacation  or  in  term  time.    But,  for 
good  cause  shown,  the  justice  or  judge  who  signed  the  citation,  or  any 
justice  of  this  court,  may  enlarge  the  time,  by  or  before  its  expiration, 
the  order  of  enlargement  to  be  filed  with  the  clerk  of  this  court.     If  the 
plaintiff  in  error  or  appellant  shall  fail  to  comply  with  this  rule,  the 
defendant  in  error  or  appellee  may  have  the  cause  docketed  and  dis- 
missed upon  producing  a  certificate,  whether  in  term  time  or  vacation, 
from  the  clerk  of  the  court  wherein  the  judgment  or  decree  was  ren- 
dered, stating  the  case  and  certifying  that  such  writ  of  error  or  appeal 
has  been  duly  sued  out  or  allowed.     And  in  no  case  shall  the  plaintiff 
in  error  or  appellant  be  entitled  to  docket  the  case  and  file  the  record 
after  the  same  shall  have  been  docketed  and  dismissed  under  this  rule, 
unless  by  order  of  the  court. 

2.  But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket 
the  case  and  file  a  copy  of  the  record  with  the  clerk  of  this  court;  and 
if  the  case  is  docketed  and  a  copy  of  the  record  filed  with  the  clerk 
of  this  court  by  the  plaintiff  in  error  or  appellant  within  the  period  of 
time  above  limited  and  prescribed  by  this  rule;  or  by  the  defendant  in 
error   or   appellee   at   any  time   thereafter,   the   case   shall   stand   for 
argument. 

3.  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by  writ 
of  error  or  appeal,  the  appearance  of  the  counsel  for  the  party  docket- 
ing the  case  shall  be  entered. 

10. 

PRINTING  RECORDS. 

1.  In  all  cases  the  plaintiff  in  error  or  appellant,  on  docketing  a  case 
and  filing  the  record,  shall  make  such  cash  deposit  with  the  clerk  for 


BULKS  OF  THE  SUPREME  COURT.  823 

:the  payment  of  his  fees  as  he  may  require  or  otherwise  satisfy  him  in 
'  that  behalf. 

2.  Immediately  after  the  designation  of  the  parts  of  the  record  to  be 
printed  or  the  expiration  of  the  time  allotted  therefor,  the  clerk  shall 
make  an  estimate  of  the  cost  of  printing  the  record,  his  fee  for  pre- 
paring it  for  the  printer  and  supervising  fee,  and  other  probable  fees, 
and  upon   application  therefor  shall  furnish  the  same  to  the  party 
docketing  the  case.    If  such  estimated  sum  be  not  paid  within  ninety 
days  after  the  cause  is  docketed,  it  shall  be  the  duty  of  the  clerk  to 
report  that  fact  to  the  court,  and  thereupon  the  cause  will  be  dismissed, 
unless  good  cause  to  the  contrary  is  shown. 

3.  Upon  payment  of  the  amount  estimated  by  the  clerk,  thirty  copies 
of  the  record  shall  be  printed,  under  his  supervision,  for  the  use  of 
the  court  and  of  counsel. 

4.  In  cases  of  appellate  jurisdiction  the  original  transcript  on  file 
shall  be  taken  by  the  clerk  to  the  printer.    But  the  clerk  shall  cause 
copies  to  be  made  for  the  printer  of  such  original  papers,  sent   up 
under  Rule  8,  section  4,  as  are  necessary  to  be  printed;  and  of  the  whole 
record  in  cases  of  original  jurisdiction. 

5.  The  clerk  shall  supervise  the  printing,  and  see  that  the  printed 
copy  is  properly  indexed.    He  shall   distribute  the  printed  copies  to 
the  justices  and  the  reporter,  from  time  to  time,  as  required,  and  a 
copy  to  the  counsel  for  the  respective  parties. 

6.  If  the  actual  cost  of  printing  the  record,  together  with  the  fee 
of  the  clerk,  shall  be  less  than  the  amount  estimated  and  paid,  the 
amount  of  the  difference  shall  be  refunded  by  the  clerk  to  the  party 
paying  it.     If  the  actual  cost  and  clerk's  fee  shall  exceed  the  estimate, 
the  amount  of  the  excess  shall  be  paid  to  the  clerk  before  the  delivery 
of  a  printed  copy  to  either  party  or  his  counsel. 

7.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the  amount 
of  the  cost  of  printing  the  record  and  of  the  clerk's  fee  shall  be  taxed 
against  the  party  against  whom  costs  are  given,  and  shall  be  inserted 
in  the  body  of  the  mandate  or  other  proper  process. 

8.  Upon  the  clerk's  producing  satisfactory  evidence,  by  affidavit  or 
the  acknowledgment  of  the  parties  or  their  sureties,  of  having  served 
a  copy  of  the  bill  of  fees  due  by  them,  .respectively,  in  this  court,  on 
such  parties  or  their  sureties,  an  attachment  shall  issue  aeainst  such 
parties  or  sureties,  respectively,  to  compel  payment  of  said  fees. 

9.  When  the  record  is  filed,  or  within  twenty  days  thereafter,  the 
plaintiff  in  error  or  appellant  may  file  with  the  clerk  a  statement  of  the 
points  on  which  he  intends  to  rely  and  of  the  parts  of  the  record  which 
he  thinks  necessary  for  the  consideration  thereof,  with  proof  of  service 


824  APPENDIX. 

of  the  same  on  the  adverse  party  «  The  adverse  party,  within  thirty 
days  thereafter,  may  designate  in  writing,  filed  with  the  clerk,  additional 
parts  of  the  record  which  he  thinks  material;  and,  if  he  shall  not  do 
so,  he  shall  be  held  to  have  consented  to  a  hearing  on  the  parts  desig- 
nated by  the  plaintiff  in  error  or  appellant.  If  parts  of  the  record 
shall  be  so  designated  by  one  or  both  of  the  parties,  the  clerk  shall 
print  those  parts  only;  and  the  court  will  consider  nothing  but  those 
parts  of  the  record  and  the  points  so  stated.  If  at  the  hearing  it  shall 
appear  that  any  material  part  of  the  record  has  not  been  printed,  the 
writ  of  error  or  appeal  may  be  dismissed  or  such  other  order  made 
as  the  circumstances  may  appear  to  the  court  to  require.  If  the  defend- 
ant in  error  or  appellee  shall  have  caused  unnecessary  parts  of  the 
record  to  be  printed,  such  order  as  to  costs  may  be  made  as  the  court 
shall  think  proper. 

The  fees  of  the  clerk  under  Rule  24,  section  7,  shall  be  computed, 
as  at  present,  on  the  folios  in  the  record  as  filed,  and  shall  be  in  full 
for  the  performance  of  his  duties  in  the  execution  hereof. 

11. 

TRANSLATIONS. 

Whenever  any  record  transmitted  to  this  court  upon  a  writ  of  error 
or  appeal  shall  contain  any  document,  paper,  testimony,  or  other  pro- 
ceedings in  a  foreign  language,  and  the  record  does  not  also  contain 
a  translation  of  such  document,  paper,  testimony,  or  other  proceedings, 
made  under  the  authority  of  the  inferior  court,  or  admitted  to  be 
correct,  the  record  shall  not  be  printed;  but  the  case  shall  be  reported 
to  this  court  by  the  clerk,  and  the  court  will  order  that  a  translation 
be  supplied  and  inserted  in  the  record. 

12. 

FUETHEB  PROOF. 

1.  In   all  cases   where  further  proof  is   ordered  by  the  court,  the 
depositions  which  may  be  taken  shall  be  by  a  commission,  tp  be  issued 
from  this  court,  or  from  any  district  court  of  the  United  States. 

2.  In  all  cases  of  admiralty  and  maritime  jurisdiction,  where  new 
evidence  shall  be  admissible  in  this  court,  the  evidence  by  testimony 
of  witnesses  shall  be  taken  under  a  commission  to  be  issued  from  this 
court,  or  from  any  district  court  of  the  United  States,  under  the  direc- 
tion of  any  judge  thereof;  and  no  such  commission  shall  issue  but  upon 


RULES  OP  THE  SUPREME  COURT.  825 

ft 

interrogatories,  to  be  filed  by  the  party  applying  for  the  commission, 
and  notice  to  the  opposite  party  or  his  agent  or  attorney,  accompanied 
with  a  copy  of  the  interrogatories  so  filed-,  to  file  cross-interrogatories 
within  twenty  days  from  the  service  of  snch  notice:  Provided,  however, 
Tliat  nothing  in  this  rule  shall  prevent  any  party  from  giving  oral  testi- 
mony in  open  court  in  cases  where  by  law  it  is  admissible. 

13. 
OBJECTIONS  TO  EVIDENCE  IN  THE  RECORD. 

In  all  cases  of  equity  or  admiralty  jurisdiction,  heard  in  this  court, 
PO  objection  shall  hereafter  be  allowed  to  be  taken  to  the  admissibility 
of  any  deposition,  deed,  grant,  or  other  exhibit  found  in  the  record  as 
evidence,  unless  objection  was  taken  thereto  in  the  court  below  and 
entered  of  record ;  but  the  same  shall  otherwise  be  deemed  to  have  been 
admitted  by  consent. 

14. 

CERTIORAKL 

No  certiorari  for  diminution  of  the  record  will  be  hereafter  awarded 
in  any  case,  unless  a  motion  therefor  shall  be  made  in  writing,  and 
the  facts  on  which  the  same  is  founded  shall,  if  not  admitted  by  the 
other  party,  be  verified  by  affidavit.  And  all  motions  for  certiorari 
must  be  made  at  the  first  term  of  the  entry  of  the  case;  otherwise, 
the  same  will  not  be  granted,  unless  upon  special  cause  shown  to  the 
court,  accounting  satisfactorily  for  the  delay. 

15. 
DEATH   OF  A  PARTY. 

1.  Whenever,  pending  a  writ  of  error  or  appeal  in  this  court,  either 
party  shall  die,  the  proper  representatives  in  the  personalty  or  realty 
of  the  deceased  party,  according  to  the  nature  of  the  case,  may  volun- 
tarily come  in  and  be  admitted  parties  to  the  suit,  and  thereupon  the- 
case  shall  be  heard  and  determined  as  in  other  cases;  and  if  such 
representatives  shall  not  voluntarily  become  parties,  then  the  other 
party  may  suggest  the  death  on  the  record,  and  thereupon,  on  motion, 
obtain  an  order  that  unless  such  representatives  shall  become  parties 
within  the  first  ten  days  of  the  ensuing  term,  the  party  moving  for 
such  order,  if  defendant  in  error  or  appellee  shall  be  entitled  to  have 


826  APPENDIX. 

* 

the  writ  of  error  or  appeal  dismissed;  and  if  the  party  so  moving  shall  be 
plaintiff  in  error  or  appellant  he  shall  be  entitled  to  open  the  record, 
and  on  hearing  have  the  judgment  or  decree  reversed,  if  it  be  erroneous: 
Provided,  however,  That  a  copy  of  every  such  order  shall  be  printed 
in  some  newspaper  of  general  circulation  within  the  State,  Territory, 
or  District  from  which  the  case  is  brought,  for  three  successive  weeks, 
at  least  sixty  days  before  the  beginning  of  the  term  of  the  Supreme 
Court  then  next  ensuing. 

2.  When  the  death  of  a  party  is  suggested,  and  the  representatives 
of  the  deceased  do  not  appear  by  the  tenth  day  of  the  second  term 
next   succeeding  the   suggestion,   and   no   measures   are   taken   by   the 
opposite  party  within  that  time  to  compel  their  appearance,  the  case 
shall  abate.  / 

3.  When  either  party  to  a  suit  in  a  court  of  the  United  States  shall 
desire  to  prosecute  a  writ  of  error  or  appeal  to  the.  Supreme  Court  of 
the  United   States,   from   any   final  judgment   or   decree,   rendered  in 
such  court,  and  at  the  time  of  suing  out  such  writ  of  error  or  appeal 
the  other  party  to  the  suit  shall  be  dead  and  have  no  proper  representa- 
tive within  the  jurisdiction  of  the  court  which  rendered  such  final  judg- 
ment or  decree,  so  that  the  suit  can  not  be  revived  in  that  court,  but 
shall  have  a  proper  representative  in  some  State  or  Territory  of  the 
United  States,  the  party  desiring  such  writ  of  error  or  appeal  may 
procure  the  same,  and  may  have  proceedings  on  such  judgment  or  decree 
superseded  or  stayed  in  the  same  manner  as  is  now  allowed  by  law 
in  other  cases,  and  shall  thereupon  proceed  with  such  writ  of  error  or 
appeal  as  in  other  cases.     And  within  thirty  days  after  the  commence- 
ment of  the  term  to  which  such  writ  of  error  or  appeal  is  returnable, 
the  plaintiff  in  error  or  appellant  shall  make  a  suggestion  to  the  court, 
supported  by  affidavit,  that  the  said  party  was  dead  when  the  writ  of 
error  or  appeal  was  taken  or  sued  out,  and  had  no  proper  representa- 
tive within  the  jurisdiction  of  the  court  which  rendered  said  judgment 
or  decree,  so  that  the  suit  could  not  be  revived  in  that  court,  and  that 
said  party  had  a  proper  representative  in  some  State  or  Territory  of 
the  United  States,  and  stating  therein  the  name  and  character  of  suclT 

.  representative,  and  the  State  or  Territory  in  which  Such  representative 
resides;  and,  upon  such  suggestion,  he  may,  on  motion,  obtain  an  order 
that,  unless  such  representative  shall  make  himself  a  party  within  the 
first  ten  days  of  the  ensuing  term  of  the  court,  the  plaintiff  in  error 
or  appellant  shall  be  entitled  to  open  the  record,  and,  on  hearing,  have 
the  judgment  or  decree  reversed,  if  the  same  be  erroneous:  Provided, 
however,  That  a  proper  citation  reciting  the  substance  of  such  order 
shall  be  served  upon  such  representative,  either  personally  or  by  being 


RULES  OP  THE  SUPREME  COUBT.  827 

left  at  his  residence,  at  least  sixty  days  before  the  beginning  of  the 
term  of  the  Supreme  Court  then  next  ensuing:  And  provided,  also.  That 
in  every  such  case  if  the  representative  of  the  deceased  party  does  not 
appear  by  the  tenth  day  of  the  term  next  succeeding  said  suggestion, 
and  the  measures  above  provided  to  compel  the  appearance  of  snch 
representative  have  not  been  taken  within  time  as  above  required,  by 
the  opposite  party,  the  case  shall  abate:  And  provided,  also,  That  the 
said  representative  may  at  any  time  before  or  after  said  suggestion 
come  in  and  be  made  a  party  to  the  suit,  and  thereupon  the  case  shall 
proceed,  and  be  heard  and  determined  as  in  other  cases. 

16. 

NO  APPEARANCE  OF  PLAINTIFF  IN  ERROR  OR  APPELLANT. 

Where  no  counsel  appears  and  no  brief  has  been  filed  for  the  plaintiff 
in  error  or  appellant,  when  the  case  is  called  for  trial,  the  defendant 
in  error  or  appellee  may  have  the  plaintiff  in  error  or  appellant  called 
and  the  writ  of  error  or  appeal  dismissed,  or  may  open  the  record  and 
pray  for  an  affirmance. 

17. 

NO  APPEARANCE  OF  DEFENDANT  IN  ERROR  OR  APPELLEE. 

Where  the  defendant  in  error  or  appellee  fails  to  appear  when  the 
case  is  called  for  trial,  the  court  may  proceed  to  hear  an  argument  on 
the  part  of  the  plaintiff  in  error  or  appellant  and  to  give  judgment 
according  to  the  right  of  the  case. 

18. 
NO  APPEARANCE  OF  EITHER  PARTY. 

When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  there 
is  no  appearance  for  either  party,  the  case  shall  be  dismissed  at  the 
cost  of  the  plaintiff  in  error  or  appellant. 

19. 
NEITHER  PARTY  READY  AT  SECOND  TERM. 

When  a  case  is  called  for  argument  at  two  successive  terms,  and  upon 
the  call  at  the  second  term  neither  party  is  prepared  to  argue  it,  it 
shall  be  dismissed  at  the  cost  of  the  plaintiff  in  error  or  appellant, 
unless  sufficient  cause  is  shown  for  further  postponement 


828  APPENDIX. 

20. 

PRINTED  ARGUMENTS. 

1.  In  all  cases  brought  here  on  writ  of  error,  appeal,  or  otherwise, 
the  court  will  receive  printed  arguments  without  regard  to  the  number 
of  the  case  on  the  docket,  if  the  counsel  on  both  sides  shall  choose  to 
submit  the  same  within  the  first  ninety  days  of  the  term;  and,  in  addi- 
tion,  appeals   from   the   Court   of   Claims   may   be   submitted   by   both 
parties  within  thirty  days  after  they  are  docketed,  but  not  after  the 
first  day  of  April;  but  thirty  copies  of  the  arguments,  signed  by  attor- 
neys or  counselors  of  this  court,  must  be  first  filed. 

2.  When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  a 
printed  argument  shall  be  filed  for  one  or  both  parties,  the  case  shall 
stand  on  the  same  footing  as  if  there  were  an  appearance  by  counsel. 

3.  When  a  case  is  taken  up  for  trial  upon  the  regular  call  of  the 
docket,  and  argued  orally  in  behalf  of  only  one   of  the  parties,  no 
printed  argument  for  the  opposite  party  will  be  received,  unless  it  is 
filed  before  the  oral  argument  begins,  and  the  court  will  proceed  to 
consider  and  decide  the  case  upon  the  ex  parle  argument. 

4.  No  brief  or  argument  will  be  received,  either  through  the  clerk 
or  otherwise,  after  a  case  has  been  argued  or  submitted,  except  upon 
leave  granted  in  open  court  after  notice  to  opposing  counsel. 

21. 

BRIEFS. 

1.  The  counsel  for  plaintiff  in  error  or  appellant  shall  file  with  the 
clerk  of  the  court,  at  least  three  weeks  before  the  case  is  called  for 
argument,  thirty  copies  of  a  printed  brief,  one  of  which  shall,  on  ap- 
plication, be  furnished  to  each  of  the  counsel  engaged  upon  the  opposite 
side. 

2.  This  brief  shall  contain,  in  the  order  here  stated- — 

(1)  A  concise  abstract,  or  statement  of  the  case,  presenting  succinctly 
the  questions  involved  and  the  manner  in  which  they  are  raised. 

(2)  A  specification  of  the  errors  relied  upon,  which  in  cases  brought 
up  by  writ  of  error,  shall  set  out  separately  and  particularly  each  error 
asserted  and  intended  to  be  urged;  and  in  cases  brought  up  by  appeal 
the  specification  shall  state,  as  particularly  as  may  be,  in  what  the 
decree  is  alleged  to  be  erroneous.     When  the  error  alleged  is  to  the 
admission  or  to  the  rejection  of  evidence,  the  specification  shall  quote 
the  full  substance  of  the  .evidence  admitted  or  rejected.     When  the 
error  alleged  is  to  the  charge  of  the  court,  the  specification  shall  set 


RULES  OP  THE  SUPREME  COURT.  829 

out  the  part  referred  to  tot  idem  verbis,  whether  it  be  instructions  given 
or  instructions  refused.  When  the  error  alleged  is  to  a  ruling  upon  the 
report  of  a  master,  the  specification  shall  state  the  exception  to  the 
report  and  the  action  of  the  court  upon  it. 

(3)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the 
points  of  law  or  fact  to  be  discussed,  with  a  reference  to  the  pages 
of  the  record  and  the  authorities  relied  upon  in  support  of  each  point. 
When  a  statute  of  a  State  is  cited,  so  much  thereof  as  may  be  deemed 
necessary  to  the  decision  of  the  case  shall  be  printed  at  length. 

3.  The  counsel  for  a  defendant  in  error  or  an  appellee  shall  file  with 
the  clerk  thirty  printed  copies  of  his  argument,  at  least  one  week  before 
the  case  is  called  for  hearing.     His  brief  shall  be  of  like  character 
with  that  required  of  the  plaintiff  in  error  or  appellant,  except  that 
no  specification  of  errors  shall  be  required,  and  no  statement  of  the 
case,  unless  that  presented  by  the  plaintiff  in  error  or  appellant  is 
controverted. - 

4.  When  there  is  no  assignment  of  errors,  as  required  by  section  997 
of  the  Revised  Statutes,  counsel  will  not  be  heard,  except  at  the  request 
of  the  court;  and  errors  not  specified  according  to  this  rule  will  be 
disregarded;  but  the  court,  at  its  option,  may  notice  a  plain  error  not 
assigned  or  specified. 

5.  When,  according  to  this  rule,  a  plaintiff  in  error  or  an  appellant 
is  in  default,  the  case  may  be  dismissed  on  motion ;  and  when  a  defend- 
ant in  error  or  an  appellee  is  in  default,  he  will  not  be  heard,  except 
on  consent  of  his  adversary,  and  by  request  of  the  court. 

6.  When  no  oral  argument  is  made  for  one  of  the  parties,  only  one 
counsel  will  be  heard  for  the  adverse  party. 

7.  No  brief  or  printed  argument,  required  by  the  foregoing  sections, 
shall  be  filed  by  the  clerk  unless  the  same  shall  be  accompanied  by  satis- 
factory proof  of  service  upon  counsel  for  the  adverse  party. 

8.  Every  brief  of  more  than  twenty  pages  shall  contain  on  its  front 
fly  leaves  a  subject  index  with  page  references,  the  subject  index  to  be 
supplemented  by  a  list  of  all  cases  referred  to,  alphabetically  arranged, 
together  with  references  to  pages  where  the  cases  are  cited. 

22. 

ORAL  ARGUMENTS. 

1.  The  plaintiff  in  error  or  appellant  in  this  court  shall  be  entitled 
to  open  and  conclude  the  argument  of  the  case.  Hut  when  there  are 
cross-appeals  they  shall  be  argued  together  as  one  case,  and  the  plaintiff 
in*  the  court  below  shall  be  entitled  to  open  and  conclude  the  argument. 


830  APPENDIX. 

2.  Only  two  counsel  will  be  heard  for  each  party  on  the  argument 
of  a  case. 

3.  One  and  one-half  hours  on  each  side  will  be  allowed  for  the  argu- 
ment, and  no  more,  without  special  leave  of  the  court,  granted  before 
the  argument  begins.     But  in  cases  certified  from  the  Circuit  Courts 
of  Appeals,  cases  involving  solely  the  jurisdiction  of  the  court  below, 
and  cases  under  the  act  of  March  2,  1907,  34   Stats.   1246,   forty-five 
minutes  only  on  each  side  will  be  allowed  for  the  argument  unless  the 
time  be  extended.     The  time  thus  allowed  may  be  apportioned  between 
the  counsel  on  the  same  side,  at  their  discretion;  provided,  always,  that 
a  fair  opening  of  the  case  shall  be  made  by  the  party  having  the  opening 
and  closing  arguments. 

23. 

INTEREST. 

1.  In  cases  where  a  writ  of  error  is  prosecuted  to  this  court,  and  the 
judgment  of  the  inferior  court  is  affirmed,  the  interest  shall  be  calculated 
and  levied,  from  the  date  of  the  judgment  below  until  the  same  is  paid, 
at  the  same  rate  that  similar  judgments  bear  interest  in  the  courts  of 
the  State  where  such  judgment  is  rendered. 

2.  In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings  on 
the  judgment  of  the  inferior  court,  and  shall  appear  to  have  been  sued 
out  merely  for  delay,  damages  at  a  rate  not  exceeding  10  per  cent.,  in 
addition  to  interest,  shall  be  awarded  upon  the  amount  of  the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment   of 
money  in  cases  in  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  in  admiralty,  damages  and  interest  may  be  allowed  if 
specially  directed  by  the  court. 

24. 
COSTS. 

1.  In  all  cases  where  any  suit  shall  be  dismissed  in  this  court,  costs 
shall  be  allowed  to  the  defendant  in  error  or  appellee,  unless  otherwise 
agreed  by  the  parties,  except  where  the  dismissal  shall  be  for  want 
of  jurisdiction,  when  the  costs  incident  to  the  motion  to  dismiss  shall 
be  allowed. 

2.  In  all  cases  of  affirmance  of  any  judgment  or  decree  in  this  court, 
costs  shall  be  allowed  to  the  defendant  in  error  or  appellee,  unless 
otherwise  ordered  by  the  court. 

3.  In  cases  of  reversal  of  any  judgment  or  decree  in  this  court,  costs 
shall  be  allowed  to  the  plaintiff  in  error  or  appellant,  unless  otherwise 


RULES  OP  THE  SUPREME  COURT. 

ordered  by  the  court.  The  cost  of  the  transcript  of  the  record  from 
the  court  below  shall  be  a  part  of  such  costs,  and  be  taxable  in  that 
court  as  costs  in  the  case. 

4.  Neither  of  the  foregoing  sections  shall  apply  to  cases  where  the 
United  States  are  a  party;  but  in  such  cases  no  costs  shall  be  allowed 
in  this  court  for  or  against  the  United  States. 

5.  In  all  cases  of  the  dismissal  of  any  suit  in  this  court,  it  shall  be 
the  duty  of  the  clerk  to  issue  a  mandate,  or  other  proper  process,  in 
the   nature  of  a  procedendo,  to  the   court  below,   for  the   purpose  of 
informing  such  court  of  the  proceedings  in  this  court,  so  that  further 
proceedings  may  be  had  in  such  court  as  to  law  and  justice  may  apper- 
tain. 

6.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the 
clerk  to  insert  the  amount  thereof  in  the  body  of  the  mandate,  or  other 
proper  process,  sent  to  the  court  below,  and  annex  to  the  same  the  bill 
of  items  taxed  in  detail. 

7.  In  pursuance  of  the  act  of  March  3,  1883,  authorizing  and  empower- 
ing this  court  to  prepare  a  table  of  fees  to  be  charged  by  the  clerk  of 
this  court,  the  following  table  is  adopted: 

For  docketing  a  case  and  filing  and  indorsing  the  transcript  of  the 
record,  five  dollars. 

For  entering  an  appearance,  twenty-five  cents. 

For  entering  a  continuance,  twenty-five  cents. 

For  filing  a  motion,  order,  or  other  paper,  twenty-five  cents. 

For  entering  any  rule,  or  for  making  or  copying  any  record  or  other 
paper,  twenty  cents  per  folio  of  each  one  hundred  words. 

For  transferring  each  case  to  a  subsequent  docket  and  indexing  the 
same,  one  dollar. 

For  entering  a  judgment  or  decree,  one  dollar. 

For  every  search  of  the  records  of  the  court,  one  dollar. 

For  a  certificate  and  seal,  two  dollars. 

For  receiving,  keeping,  and  paying  money  in  pursuance  of  any  statute 
or  order  of  court,  two  per  cent,  on  the  amount  so  received,  kept,  and 
paid. 

For  an  admission  to  the  bar  and  certificate  under  seal,  ten  dollars. 

For  preparing  the  record  or  a  transcript  tln-n-nt  for  the  printer,  in- 
dexing the  same,  supervising  the  printing,  and  distributing  the  printed 
copies  to  the  justices,  the  reporter,  the  law  library,  and  the  partit 
their  counsel,  fifteen  cents  per  folio;  but  when  the  necessary  printed 
copies  of  the  record,  as  printed  for  the  use  of  the  lower  court,  shall  be 
furnished,  the  fee  for  supervising  shall  be  five  cents  per  folio. 


832  APPENDIX. 

For  making  a  manuscript  copy  of  the  record,  when  required  under 
Rule  10,  twenty  cents  per  folio,  but  nothing  in  addition  for  supervising 
the  printing. 

For  issuing  a  writ  of  error  and  accompanying  papers,  five  dollars. 

For  a  mandate  or  other  process,  five  dollars. 

For  filing  briefs,  five  dollars  for  each  party  appearing. 

For  every  printed  copy  of  any  opinion  of  the  court  or  any  justice 
thereof,  certified  under  seal,  two  dollars. 

25. 

OPINIONS  OF  THE  COURT. 

1.  All  opinions  delivered  by  the  court  shall,  immediately  upon  the 
delivery  thereof,  be  handed  to  the  clerk  to  be  printed.     And  it  shall  be 
the  duty  of  the  clerk  to  cause  the  same  to  be  forthwith  printed,  and 
to  deliver  a  copy  to  the  reporter  as  soon  as  the  same  shall  be  printed. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk 
of  this  court  for  preservation. 

3.  Opinions  printed  under  the  supervision  of  the  justices  delivering 
the  same  need  not  be  copied  by  the  clerk  into  a  book  of  records;  but 
at  the  end  of  each  term  the  clerk  shall  cause  such  printed  opinions 
to  be  bound  in  a  substantial  manner  into  one  or  more  volumes,  and 
when  so  bound  they  shall  be  deemed  to  have  been  recorded. 

26. 
CALL  AND  ORDER  OF  THE  DOCKET. 

1.  The  court,  on  the  second  day  in  each  term,  will  commence  calling 
the  cases  for  argument  in  the  order  in  which  they  stand  on  the  docket, 
and  proceed  from  day  to  day  during  the  term  in  the  same  order  (except 
as  hereinafter  provided) ;  and  if  the  parties,  or  either  of  them,  shall  be 
ready  when  the  case  is  called,  the  same  will  be  heard;  and  if  neither 
party  .shall  be  ready  to  proceed  in  the  argument,  the  case  shall  be  con- 
tinued to  the  next  term  of  the  court  unless  some  good  and  satisfactory 
reason  to  the  contrary  shall  be  shown  to  the  court. 

2.  Ten  cases  only  shall  be  considered  as  liable  to  be  called  on  each 
day  during  the  term.     But  on  the  coming  in  of  the  court  on  each  day 
the  entire  number  of  such  ten  cases  will  be  called,  with  a  view  to  the 
disposition  of  such  of  them  as  are  not  to  be  argued. 

3.  Criminal  cases  may  be  advanced  by  leave  of  the  court  on  motion 
of  either  party. 


RULES  OF  TUB  SUPREME  COURT.  833 

4.  Cases  once  adjudicated  by  this  court  upon  the  merits,  and  again 
brought  up  by  writ  of  error  or  appeal,  may  be  advanced  by  leave  of 
the  court  on  motion  of  either  party. 

5.  Revenue  and  other  cases  in  which  the  United  States  are  concerned, 
which  also  involve  or  affect  some  matter  of  general  public  interest,  or 
which  may  be  entitled  to  precedence  under  the  provisions  of  any  act 
of  Congress,  may  also  by  leave  of  the  court  be  advanced  on  motion 
of  the  Attorney-General. 

6.  All  motions  to  advance  cases  must  be  printed,  and  must  contain 
a  brief  statement  of  the  matter  involved,  with  the  reasons  for  the 
application. 

7.  No  other  case  will  be  taken  up  out  of  the  order  on  the  docket, 
or  be  set  down  for  any  particular  day,  except  under  special  and  peculiar 
circumstances  to  be  shown  to  the  court. 

8.  Two  or  more  cases,   involving  the  same  question,  may,  by  the 
leave  of  the  court,  be  heard  together,  but  they  must  be  argued  as  one 
case.  • 

9.  If,  after  a  case  has  been  passed,  the  parties  shall  desire  to  have 
it  heard,  they  may  file  with  the  clerk  their  joint  request  to  that  effect, 
and  the  case  shall  then  be  by  him  reinstated  for  call  ten  cases  after  that 
under  argument,  or  next  to  be  called  at  the  end  of  the  day  the  request 
is  filed.    If  the  parties  will  not  unite  in  such  a  request,  either  may 
move  to  take  up  the  case,  and  it  shall  then  be  assigned  to  such  place 
upon  the  docket  as  the  court  may  direct. 

10.  No  stipulation  to  pass  a  case  will  be  recognized  as  binding  upon 
the  court.    A  case  can  only  be  so  passed  upon  application  made  and 
leave  granted  in  open  court. 

27. 

ADJOURNMENT. 

The  court  will,  at  every  term,  announce  on  what  day  it  will  adjonrn 
at  least  ten  days  before  the  time  which  shall  be  fixed  upon,  and  the 
court  will  take  up  no  case  for  argument,  nor  receive  any  case  upon 
printed  briefs,  within  three  days  next  before  the  day  fixed  upon  for 
adjournment. 

28. 

DISMISSING  CASES  IN  VACATION. 

Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending  in 
this  court,  or  the  appellant  and  appellee  in  an  appeal,  shall  in  vacation, 

Manual — 5» 


834  APPENDIX.' 

by  their  attorneys  of  record,  sign  and  file  with  the  clerk  an  agreement 
in  writing  directing  the  case  to  be  dismissed,  and  specifying  the  terms 
on  which  it  is  to  be  dismissed  as  to  costs,  and  shall  pay  to  the  clerk 
any  fees  that  may  be  due  to  him,  it  shall  be  the  duty  of  the  clerk  to 
enter  the  case  dismissed,  and  to  give  to  either  party  requesting  it  a 
copy  of  the  agreement  filed;  but  no  mandate  or  other  process  shall 
issue  without  an  order  of  the  court. 

29. 

8UPERSEDEAS. 

Supersedeas  bonds  in  the  district  courts  and  Circuit  Courts  of  Appeals 
must  be  taken,  with  good  and  sufficient  security,  that  the  plaintiff  in 
error  or  appellant  shall  prosecute  his  writ  or  appeal  to  effect,  and 
answer  all  damages  and  costs  if  he  fail  to  make  his  plea  good.  Such 
indemnity,  where  the  judgment  or  decree  is  for  the  recovery  of  money 
not  otherwise  secured,  must  be  for  the  whole  amount  of  the  judgment 
or  decree,  including  just  damages  for  delay,  and  costs  and  interest  on 
the  appeal;  but  in  all  suits  where  the  property  in  controversy  necessarily 
follows  the  event  of  the  suit,  as  in  real  actions,  replevin,  and  in  suits 
on  mortgages,  or  where  the  property  is  in  the  custody  of  the  marshal 
under  admiralty  process,  as  in  case  of  capture  or  seizure,  or  where 
the  proceeds  thereof,  or  a  bond  for  the  value  thereof,  is  in  the  custody 
or  control  of  the  court,  indemnity  in  all  such  cases  is  only  required 
in  an  amount  sufficient  to  secure  the  sum  recovered  for  the  use  and 
detention  of  the  property,  and  the  costs  of  the  suit,  and  just  damages 
for  delay,  and  costs  and  interest  on  the  appeal. 

30. 

REHEARING. 

A  petition  for  rehearing  after  judgment  can  be  presented  only  at 
the  term  at  which  judgment  is  entered,  unless  by  special  leave  granted 
during  the  term;  and  must  be  printed  and  briefly  and  distinctly  state 
its  grounds,  and  be  supported  by  certificate  of  counsel;  and  will  not 
be  granted,  or  permitted  to  be  argued,  unless  a  justice  who  concurred 
in  the  judgment  desires  it,  and  a  majority  of  the  court  so  determines. 

31. 
FOEM  OF  PRINTED  RECORDS  AND  BRIEFS. 

All  records,  arguments,  and  briefs,  printed  for  the  use  of  the  court, 
must  be  in  such  form  and  size  that  they  can  be  conveniently  bound 


RULES  OF  THE  SUPREME  COURT.  835 

together,  so  as  to  make  an  ordinary  octavo  volume;  and,  as  well  as 
all  quotations  contained  therein,  and  the  covers  thereof,  must  be  printed 
in  clear  type  (never  smaller  than  small  pica)  and  on  unglazed  paper. 

32. 

WRITS  OP  ERROR  AND  APPEALS  IN  CASES  INVOLVING 
JURISDICTION  OP  LOWER  COURT. 

Cases  brought  to  this  court  by  writ  of  error  or  appeal,  where  the 
only  question  in  issue  is  the  question  of  the  jurisdiction  of  the  court 
below,  will  be  advanced  on  motion,  and  heard  under  the  rules  prescribed 
by  Rule  6,  in  regard  to  motions  to  dismiss  writs  of  error  and  appeals. 

33. 

MODELS,  DIAGRAMS,  AND  EXHIBITS  OP  MATERIAL. 

1.  Models,  diagrams,  and  exhibits  of  material  forming  part  of  the 
evidence  taken  in  the  court  below,  in  any  case  pending  in  this  court, 
on  writ  of  error  or  appeal,  shall  be  placed  in  the  custody  of  the  marshal 
of  this  court  at  least  one  month  before  the  case  is  heard  or  submitted. 

2.  All   models,    diagrams,   and   exhibits   of   material,   placed    in   the 
custody  of  the  marshal  for  the  inspection  of  the  court  on  the  hearing 
of  a  case,  must  be  taken  away  by  the  parties  within  one  month  after 
the  case  is  decided.    When  this  it  not  done,  it  shall  be  the  duty  of 
the  marshal  to  notify  the  counsel  in  the  case,  by  mail  or  otherwise,  of 
the  requirements  of  this   rule;   and   if  the   articles  are   not   removed 
within  a  reasonable  time  after  the  notice  is  given,  he  shall  destroy 
them,  or  make  such  other  disposition  of  them  as  to  him  may  seem  best. 

34. 

CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 

1.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge  • 
declining  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  prisoner 
shall  not  be  disturbed. 

2.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  writ  after  it   has  been  issued,  the  prisoner  shall   be 
remanded  to  the  custody  from  which  he  was  taken  by  the  writ,  or  shall. 
for  good  cause  shown,  be  detained  in  custody  of  the  court  or  judge,  or 
be  enlarged  upon  recognizance  as  hereinafter  provided. 


836  APPENDIX. 

3.  Pending  an  appeal  from  the  final  decision  •  of  any  court  or  judge 
discharging  the  prisoner,  he  shall  be  enlarged  upon  recognizance,  with 
surety,  for  appearance  to  answer  the  judgment  of  the  appellate  court, 
except  where,  for  special  reasons,  sureties  ought  not  to  be  required. 

35. 

ASSIGNMENT  OF  ERRORS. 

1.  Where  an  appeal  or  a  writ  of  error  is  taken  from  a  district  court 
direct  to  this  court,  under  section  238  of  the  act  entitled  "An  act  to 
codify,  revise,  and  amend  the  laws  relating  to  the  judiciary,"  approved 
March  3,  1911,  chapter  231,  the  plaintiff  in  error  or  appellant  shall  file 
with  the  clerk  of  the  court  below,  with  his  petition  for  the  writ  of 
error  or  appeal,  an  assignment  of  errors,  which  shall  set  out  separately 
and  particularly  each  error  asserted  and  intended  to  be  urged.    No 
writ  of  error  or  appeal  shall  be  allowed  until  such  assignment  of  errors 
shall  have  been  filed.     When  the  error  alleged  is  to  the  admission  or 
to  the  rejection  of  evidence,  the  assignment  of  errors  shall  quote  the 
full  substance  of  the  evidence  admitted  or  rejected.    When  the  error 
alleged  is  to  the  charge  of  the  court,  the  assignment  of  errors  shall  set 
out  the  part  referred  to  totidem  verbis,  whether  it  be  in  instructions 
given  or  in  instructions  refused.     Such  assignment  of  errors  shall  form 
part  of  the  transcript  of  the  record,  and  be  printed  with  it.     When 
this  is  not  done  counsel  will  not  be  heard,  except  at  the  request  of 
the  court;  and  errors  not  assigned  according  to  this  rule  will  be  dis- 
regarded, but  the  court,  at  its  option,  may  notice  a  plain  error  not 
assigned. 

2.  The  plaintiff  in  error  or  appellant  shall  cause  the  record  to  be 
printed,  according  to  the  provisions  of  sections  2,  3,  4,  5,  6,  and  9,  of 
Rule  10. 

36. 

APPEALS  AND  WRITS  OF  ERROR  FROM  DISTRICT  COURTS. 

1.  An  appeal  or  a  writ  of  error  from  a  district  court  direct  to  this 
court,  in  the  cases  provided  for  in  §§  238  and  252  of  the  act  entitled, 
"An  act  to  codify,  revise,  and  amend  the  laws  relating  to  the  judiciary," 
approved  March  3,  1911,  chapter  231,  may  be  allowed,  in  term  time 
or  in  vacation  by  any  justice  of  this  court,  or  by  any  circuit  judge 
assigned  to  the  district  court,  or  by  any  district  judge  within  his  dis- 
trict, and  the  proper  security  be  taken  and  the  citation  signed  by  him, 


BULKS  OP  THE  SUPREME  COURT.  837 

and  he  may  also  grant  a  superscdecu  and  stay  of  execution  or  of  pro- 
ceedings, pending  such  writ  of  error  or  appeal. 

2.  Where  such  writ  of  error  is  allowed  in  the  case  of  a  conviction 
of  an  infamous  crime,  or  in  any  other  criminal  case  in  which  it  will 
lie  under  section  238,  the  district  court,  or  any  judge  thereof,  or  any 
justice  of  this  court,  or  any  circuit  judge  assigned  to  the  district  court, 
shall  have  power,  after  the  citation  is  served,  to  admit  the  accused  to 
bail  in  such  amount  as  may  be  fixed. 

37. 

CASES  CERTIFIED  AND  PETITIONS  FOR  WRITS  OF  CERTIORARL 

1.  Where,  under  section  239  of  the  act  entitled  "An  act  to  codify, 
revise,  and  amend  the  laws  relating  to  the  judiciary,"  approved  March 
3,  1911,  chapter  231,  a  Circuit  Court  of  Appeals  shall  certify  to  this 
court  a  question  or  proposition  of  law,  concerning  which  it  desires  the 
instruction  of  this  court  for  its  proper  decision,  the  certificate  shall 
contain  a  proper  statement  of  the  facts  on  which  such  question  or 
proposition  of  law  arises. 

2.  If  application   is   thereupon   made   to  this  court  that  the   whole 
record  and  cause  may  be  sent,  up  to  it  for  its  consideration,  the  party 
making  such  application  shall,  as  a  part  thereof,  furnish  this  court  with 
a  certified  copy  of  the  whole  of  said  record. 

3.  Where  an  application  is  submitted  to  this  court  for  a  writ  of 
certiorari  to  review  a  decision  of  a  Circuit  Court  of  Appeals  or  any 
other  court,  it  shall  be  necessary  for  the  petitioner  to  furnish  as  an 
exhibit  to  the  petition  a  certified  copy  of  the  entire  transcript  of  record 
of  the  case,  including  the  proceedings  in  the  court  to  which  the  writ 
of  certiorari  is  asked  to  be  directed.     The  petition  shall  contain  only  a 
summary  and  short  statement  of  the  matter  involved  and  the  general 
reasons  relied  on  for  the  allowance  of  the  writ.     A  failure  to  comply 
with  this  provision  will  be  .deemed  a  sufficient  reason  for  denying  the 
petition.     Thirty  printed  copies  of  such  petition  and  of  any  brief  deemed 
necessary  shall  be  filed.    Notice  of  the  date  of  submission  of  the  petition, 
together  with  a  copy  of  the  petition  and  brief,  if  any,  in  support  of 
the  same  shall  be  served  on  the  counsel  for  the  respondent  at  least  two 
weeks  before  such  date  in  all  cases  except  where  the  counsel  to  be 
notified  resides  west  of  the  Rocky  Mountains,  in  which  cases  the  time 
shall  be  at  least  three  weeks.     The  brief  for  the  respondent,  if  any, 
shall  be  filed  at  least  three  days  before  the  date  fixed  for  the  submission 
of  the  petition.     Oral  argument  will  not  be  permitted  on  such  petitions, 


838  APPENDIX. 

and  no  petition  will  be  received  within  three  days  next  before  the  day 
fixed  upon  for  the  adjournment  of  the  court  for  the  term. 

4.  An  application  for  a  writ  of  certiorari  will  be  deemed  in  time  when 
the  petition  therefor,  accompanied  by  the  printed  record  and  brief, 
is  filed  within  the  period  prescribed  by  law:  Provided  this  is  followed 
by  submitting  the  petition  in  open  Court  on  some  motion  day  not  later 
than  the  first  one  which  follows  a  period  of  four  weeks  after  such  filing. 
Notice  of  the  date  of  submission  and  copies  of  the  petition  and  brief 
must  be  served  as  required  by  Section  3  of  this  rule.  (Promulgated 
March  26,  1917.) 

38. 

INTEREST,  COST,  AND  FEES. 

The  provisions  of  Rules  23  and  24  of  this  court,  in  regard  to  interest 
and  costs  and  fees,  shall  apply  to  writs  of  error  and  appeals  and  reviews 
under  the  provisions  of  sections  238,  239,  240,  and  241  of  the  act  en- 
titled "An  act  to  codify,  revise,  and  amend  the  laws  relating  to  the 
judiciary,"  approved  March  3,  1911,  chapter  231. 

39. 

MANDATES. 

Mandates  shall  issue  as  of  course  after  the  expiration  of  thirty  days 
from  the  day  the  judgment  or  decree  is  entered,  unless  the  time  is 
enlarged  by  order  of  the  court,  or  of  a  justice  thereof  when  the  court 
is  not  in  session,  but  during  the  term. 

40. 

PEACTICE  IN  CASES  FROM  CIRCUIT  COURTS  OF  A~PPEALS. 

The  provisions  of  these  rules  relating  to  the  practice  on  direct  writs 
of  error  to  and  appeals  from  the  district  courts  shall  also  be  deemed 
to  relate  to  and  cover  the  practice  on  writs  of  error  to  and  appeals  from 
the  Circuit  Courts  of  Appeals. 


INDEX  TO  RULES  OF  THE  SUPREME  COURT. 


Rules  See. 

Adjournment    £7        

Admiralty,  record  in g  g 

Appearance  of  counsel 9  j 

for  plaintiff  in  error  or  appellant,  no 16  — 

defendant  in  error  or  appellee,  no 17  — 

either  party,  no 18  — 

Appeals  in  cases  involving  jurisdiction  of  district  court 32  — 

Appeals  under  act  of  March  3,  1911 36  — 

Appeals  direct  from  district  court,  when  and  by  whom  allowed.   36  1 

bail  to  be  allowed,  when..  36  2 

Argument,    oral 22  — 

order  of 22  1 

time  allowed  for 22  3 

on    motions 6  2 

printed    20  — 

submission    on 20  1 

not  received  after  submission 20  4 

Assignment  of  errors 21  2,  4 

under  act  of  March  3,  1911 35  1 

Attachment  for  clerk's  fees 10  8 

Attorneys,  admission  of 2  1 

oath  of 2  2 

Bail,  when  and  how  granted 36  8  » 

Bill  of  exceptions 4  — 

Briefs    21  — 

contents  of 21  2 

time  for  filing  by  plaintiff  in  error  or  appellant 21  1 

defendant  in  error  or  appellee 21  3 

service  on  opposing  counsel  required 21  7 

index  to,  when  required,  etc 21  8 

for  respondent  on  oertiorari,  when  to  be  filed 37  3 

form  of  printed 31  — 

not  received  after  argument 20  4 

Cases  involving  same  question  may  be  heard  together 26  8 

passed,  how  restored  to  call 26  9 

dismissal  of,  in  vacation 28  — 

Cert  iorari   14  — 

Certiorari    to    Circuit    Court    of    Appeals,    regulations    govern- 
ing applications  for 37  S 

Circuit  Courts  of  Appeals,  cases  from,  etc 37  — 

practice    ii 40  — 

(839) 


840  APPENDIX. 

Rules     Sec. 

Citation,   eervice   of.... 8  5 

Clerk    ^ 1  — 

Clerk's  fees,  table  of f 24  7 

attachment   for    10  8 

deposit  for   10  1 

Conference-room    library 7  3 

Costs  of  printing  record 10  2,  6,  7 

how  taxed   24  — 

none    recoverable    in    cases    where    United    States    in 

party , 24  4 

Counsel,  admission   of    2  1 

appearance   of 9  3 

no   appearance   of 18  — 

two  only  to  be  heard  on  argument 22  2 

time  allowed  for  argument 22  3 

motions    6  2 

Custody  of  prisoners  on  habeas  corpus 34  — 

Damages  for  delay 23  2 

Defendant,  no  appearance  of 17  .— 

Death  of  a  party 15  — 

defendant   in   error   or    appellee    after   judgment 

in  lower  court 15  3 

Deposit  for  clerk's  fees 10  1 

Dismissal  in  vacation 28  — 

Docketing  cases 9  — 

by  plaintiff  in  error  or  appellant 9  1 

defendant  in  error  or  appellee 9  2 

Docket,  call  of 26  — 

day-call    26  2 

Errors,   assignment  of 21  4 

specification  of    21  2 

Evidence,  new,  how  taken 12  1 

in  admiralty   12  2 

in  the  record,  objections  to 13  — 

Exceptions,  bill  of 4  — 

Exhibits  of  material 33  — 

Fees,  table  of  clerk's 24  7 

attachment  for  10  8 

security   for    10  1 

Habeas  corpus,  custody  of  prisoners  on 34  — 

Interest   23  — 

in  admiralty  23  4 

in  equity   . . .' 23  3 

at  law 23  1 

under  act  of  March  3,  1911 38  — 


INDEX  TO  RULES  OF  THE  SUPREME  COUBT.  841 

Rules  See, 

Jurisdiction — cases  involving  district  court 32  — 

Law  library 7  — 

mode  of  obtaining  books  from,  bj  counsel 7  1 

clerk  to  deposit  records  in 7  1! 

of  conference-room 7  3 

List  of  cases  in  briefs,  when  required,  etc 21  8 

Mandates 39  — 

Mandate  in  case  dismissed 24  5 

in  vacation 28  — 

Motions   6  — 

to  be  in  writing 0  1 

notice    of 8  3,4 

time  allowed  for  argument 6  2 

to  affirm 6  5 

to   dismiss 6  4 

Motions,  notice  and  service  of  briefs 6  4 

submission   of 6  4 

to   advance 28  6 

eases  once   adjudicated 26  4 

criminal  cases 26  3 

revenue  cases 28  5 

eases    involving    jurisdiction    of    district 

court   .  ,4 32  — 

Motion   day 6  7 

Opinions  of  the  Supreme  Court 25  — 

court  below  to  be  annexed  to  record 8  2 

Original  papers  not  to  be  taken  from  courtroom  or  clerk's  office     1 

from  court  below 8  4 

Parties,    death    of 15  — 

Petitions  for  certiorari  to   C.  C.  A. — regulations  governing....  37  3 

Plaintiff  in  error  or  appellant,  no  appearance  of 16  — 

Practice    -• 

Process,  form  of 

service   of 5  2,   3 

Record 

return   of 8 

designated  record  from  court  below 8 

to  contain  all  necessary  papers  in  full 8 

opinion  of  court  below 8 

translations  of  papers  in  foreign  language  11  — 

printed  under  supervision  of  clerk 10  S 

printed  form  of 3 

printing  parts  of 10 

cost   of 10  » 

(Wtiorari  for  diminution  of 14  — 


842  APPENDIX. 

Rules  See. 

In  admiralty  cases 8  6 

in  cases  coming  up  under  act  of  March  3,  1911 37  — • 

how    printed 35  2 

Rehearing    30  — 

Representatives   of   deceased  parties    appearing 15  1 

not  appearing 15  2 

Return  to  writ  of  error 8  — 

day 8  5 

Revenue  cases  advanced  on  motion 26  5 

Second  term,  neither  party  ready  for  trial , 19  — 

Security  for  clerk's  fees 10  1 

Subpoena,  service  of.. 5  3 

Supersedeas    29  — 

Translations    H  — 

Writ  of  error,  return  to 8  — 

in     cases     involving     jurisdiction     of     district 

courts    32  — 

under  act  of  March  3,  1911 36  — 


KULES  OP  THE  UNITED  STATES 
CIRCUIT  COURTS  OP  APPEALS, 

(INDEXED  IN  GENERAL  INDEX.) 
(843) 


RULES  OF  THE  UNITED  STATES  CIRCUIT 
COUETS  OP  APPEALS. 


STATEMENT. 

The  rules  of  the  United  States  Circuit  Courts  of  Appeals  as  they  exist  in 
each  of  the  nine  circuits  are  so  similar  that  but  one  statement  of  a  rule  is 
made  where  the  rule  is  alike  in  a  number  of  the  circuits.  Where  there  is  a 
variance  in  different  circuits  the  variance  IB  shown  either  by  repeating  the 
rule  as  it  is  in  the  several  differing  circuits,  or  by  explaining  the  difference. 

The  rule  in  any  particular  circuit  may  be  ascertained  by  noting  the  num- 
ber of  the  circuit  at  the  head  of  each  rule.  If  a  blank  line  appears  in  the 
place  allotted  to  that  circuit  number,  then  its  rule  will  be  found  below  ••? ith 
the  number  of  the  circuit  over  it.  Follow  down  vertically  beneath  the  blank 

line  in  the  place  allotted  to  the  circuit  number  until  the  number  appears. 

^ 

RULE  1. 
1st        2d        3d        4th        5th  7th        8th        9th 

1.  NAME. 

The  court  adopts  "United  States  Circuit  Court  of  Appeals  for  the  — 
Circuit ' '  as  the  title  of  the  court. 
The  above  rule  is  §  1,  rule  2,  in  sixth  circuit,  and  its  rule  1  is  as  follows: 

6th 

1.    DEFINITIONS. 

In  these  rules  "counsel"  shall  include  attorneys,  solicitors,  proctors, 
and  advocates;  "appellant"  shall  include,  also,  plaintiff  in  error,  peti- 
tioner for  review  or  mandamus,  and  any  other  party  seeking  review  in 
this  court;  "appellee"  shall  include,  also,  defendant  in  error  and  any 
other  party  respondent  in  this  court. 

RULE  2. 
1st        2d        3d        4th        6th  7th        8th        9th 

2.  SEAL. 

The  seal  shall  contain  the  words  "United  States"  on  the  upper  part  of 
the  outer  edge;  and  the  words  "Circuit  Court  of  Appeals"  on  the  lower 

(845) 


846  APPENDIX. 

part  of  the  outer  edge,  running  from  left  to  right;  and  the  words 
Circuit"  in  two  lines,  in  the  center,  with  a  dash  beneath. 

The  above  is  §  2,  rule  2,  in  the  sixth  circuit. 

6th 

2.    NAME  AND  SEAL. 

1.  Same  as  rule  1  of  the  other  circuits  above. 

2.  Same  as  rule  2  of  the  other  circuits  above. 

RULE  3. 


3.    TERMS  AND  SESSIONS. 

One  term  of  this  court  shall  be  held  annually  at  the  city  of  Boston  at 
ten  o'clock  in  the  forenoon  on  the  first  Tuesday  of  October.  Stated 
sessions  thereof  shall  be  there  held  at  the  same  hour  on  the  first  Tues- 
day of  every  month,  and  may  be  adjourned  to  such  times  and  places  as 
the  court  may  from  time  to  time  designate.  But,  unless  otherwise 
ordered,  any  adjournment  shall  be  held  to  have  been  made  to  the  first 
day  of  the  next  stated  session. 

2d 

One  term  of  this  court  shall  be  held  annually  at  the  city  of  New  York 
on  the  first  Monday  of  October,  and  shall  be  adjourned  to  such  times 
and  places  as  the  court  may  from  time  to  time  designate. 

3d 

The  terms  of  this  court  shall  commence  and  be  held  on  the  first  Tues- 
day of  March  and  the  first  Tuesday  of  October  in  each  year,  at  the  city 
of  Philadelphia. 

4th 

1.  There  shall  be  held  in  the  city  of  Richmond,  Virginia,  three  regular 
terms  of  this  court  ;  one  on  the  first  Tuesday  of  January,  one  on  the  first 
Tuesday  of  April,  and  one  on  the  first  Tuesday  of  October,  in  each  year  ; 
and  there  shall  be  held  in  the  city  of  Ashyille,  North  Carolina,  fine 
regular  term  of  this  court  on  the  first  Tuesday  of  July,  in  each  year. 

2.  Special  sessions  of  this  court  shall  be  held  in  Richmond,  Virginia, 
on  the  second  Tuesday  of  every  month  of  the  year  except  in  those  months 
in  which  regular  terms  of  the  court  are  held.     During  said  sessions  such 
orders,  judgments  or  decrees  as  may  be  necessary  concerning  pending 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      847 

cases  may  be  considered  and  disposed  of,  opinions  in  cases  theretofore 
argued  may  be  filed  and  decrees  and  judgments  relating  thereto  entered, 
mandates  issued,  and  any  such  further  action  taken  as  is  authorized  by 
the  statute  in  such  case  made  and  provided. 

3.  If  at  any  such  special  session  no  judge  shall  be  in  attendance,  the 
clerk  shall  adjourn  the  court  until  the  next  day,  or  to  such  time  as  the 
senior  circuit  judge  shall  direct,  and  then  in  case  no  direction  be  made, 
to  the  next  session  or  term  of  the  court. 

6th 

A  session  of  this  court  shall  be  held  annually  at  the  city  of  Atlanta, 
Georgia,  on  the  first  Monday  in  October;  at  the  city  of  Montgomery. 
Alabama,  on  the  third  Monday  in  October;  at  the  city  of  Fort  Worth, 
Texas,  on  the  first  Monday  in  November;  at  the  city  of  New  Orleans, 
Louisiana,  on  the  third  Monday  in  November,  and  shall  be  adjourned  to 
such  other  time  and  places  as  the  court  may  from  time  to  time  order 
and  designate. 

6th 

One  term  of  this  court  shall  be  held  annually  on  the  Tuesday  after 
the  first  Monday  in  October,  and  adjourned  sessions  on  the  Tuesday 
after  the  first  Monday  of  each  other  month  in  the  year,  except  August 
and  September.  At  the  July  session,  no  causes  will  be  heard,  except 
upon  the  special  order  of  the  court. 

All  sessions  shall  be  held  at  Cincinnati,  unless  otherwise  specially 
ordered  by  the  court. 

7th 

A  term  of  this  court  shall  be  held  annually  at  the  city  of  Chicago  on 
the  first  Tuesday  in  October,  and  continue  until  the  first  Tuesday  in 
October  of  the  succeeding  year.  Every  term  shall  be  adjourned  to  such 
time  and  places  as  the  court  may  from  time  to  time  designate.  Unless 
otherwise  specially  ordered,  the  Courtxwill  hold  at  Chicago  three  ses- 
sions for  the  hearing  of  causes  during  each  term,  beginning  on  the  first 
Tuesdays  in  October  and  January,  respectively,  and  the  second  Tuesday 
in  April. 

8th 

1.  Three  terms  of  this  court  will  be  hold  annually,  one  at  the  city  of 
St.  Paul  on  the  first  Monday  of  May,  one  nt  tlio  <-ity  of  Denver,  on  the 
first  Monday  of  September,  and  one  at  the  city  of  St.  Louis  on  the  first 
Monday  of  December. 


848  APPENDIX. 

2.  Cases  from  Minnesota,  North  Dakota,  South  Dakota,  Nebraska, 
Iowa,  Kansas,  Missouri,  Arkansas,  and  Oklahoma,  in  which  transcripts 
to  be  printed  under  the  supervision  of  the  clerk  of  this  court  are  filed, 
or  transcripts  printed  before  certification  by  the  clerk  of  the  lower  court, 
and  proof  by  affidavit  or  admission  that  three  copies  of  the  printed  tran- 
scripts have  been  served  on  the  defendants  in  error  or  appellees,  or  their 
counsel,  are  filed  on  or  before  the  first  day  of  April,  and  cases  from 
Colorado,  Utah,  Wyoming,  and  New  Mexico  in  which  transcripts  to  be 
printed  under  the  supervision  of  the  clerk  of  this  court  are  filed,  or  tran- 
scripts printed  before  certification  by  the  clerk  of  the  lower  court  and 
proof  by  affidavit  or  admission  that  three  copies  of  the  printed  tran- 
scripts have  been  served  on  the  defendants  in  error  or  appellees,  or  their 
counsel,  and  stipulations  of  the  parties  for  their  hearing  at  the  May 
term  in  St.  Paul  are  filed  on  or  before  the  first  day  of  April,  and  those 
only,  will  be  heard  at  the  succeeding  May  term  of  the  court  in  St.  Paul. 

3.  Cases  from  Colorado,  Wyoming,  Utah,  and  New  Mexico  in  which 
transcripts  to  be  printed  under  the  supervision  of  the  clerk  of  this  court 
are  filed,  or  transcripts  printed  before  certification  by  the  clerk  of  the 
lower  court  and  proof  by  affidavit  or  admission  that  three  copies  of  the 
printed  transcripts  have  been  served  on  the  defendants  in  error  or  appel- 
lees, or  their  counsel,  are  filed  on  or  before  the  first  day  of  July  and 
cases  from  the  remainder  of  the  circuit  in  which  transcripts  to  be  printed 
under  the  supervision  of  the  clerk  of  this  court  are  filed,  or  transcripts 
printed  before  certification  by  the  clerk  of  the  lower  court  and  proof  by 
affidavit  or  admission  that  three  copies  of  the  printed  transcripts  have 
been  served  on  the  defendants  in  error  or  appellees,  or  their  counsel, 
and  stipulations  of  the  parties  for  their  hearing  at  the  September  term 
in  Denver  are  filed  on  or  before  the  first  day  of  July,  and  those  only,  will 
be  heard  at  the  succeeding  September  term  in  Denver. 

4.  Cases  from  Minnesota,  North  Dakota,   South  Dakota,  Nebraska, 
Iowa,  Kansas,  Missouri,  Arkansas,  and  Oklahoma  in  which  transcripts 
to  be  printed  under  the  supervision  of  the  clerk  qf  this  court  are  filed, 
or  transcripts  printed  before  certification  by  the  clerk  of  the  lower  court 
and  proof  by  affidavit  or  admission  that  three  copies  of  the  printed  tran- 
scripts have  been  served  on  the  defendants  in  error  or  appellees,  or  their 
counsel,  are  filed  on  or  before  the  first  day  of  October,  and  cases  from 
Colorado,  Wyoming,  Utah,  and  New  Mexico  in  which  transcripts  to  be 
printed  under  the  supervision  of  the  clerk  of  this  court  are  filed,  or 
transcripts  printed  before  certification  by  the  clerk  of  the  lower  court 
and  proof  by  affidavit  or  admission  that  three  copies  of  the  printed  tran- 
scripts have  been  served  on  the  defendants  in  error  or  appellees,  or  their 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      849 

m 

,    counsel,  and  stipulations  of  the  parties  for  their  hearing  at  the  Decem- 
ber term  in  St.  Louis  are  filed  on  or  before  the  first  day  of  October,  and 
those  only,  will  be  heard  at  the  succeeding  December  term  in  St.  Ixmis. 
5.  These  terms  of  the  court  may  be  adjourned  to  such  times  and  places 
as  the  court  may  from  time  to  time  designate. 

9th 

One  term  of  this  court  shall  be  held  annually  at  the  city  of  San  Fran- 
cisco on  the  first  Monday  of  October,  and  shall  be  adjourned  to  such 
times  and  places  as  the  court  may  from  time  to  time  designate.  (See, 
also,  rule  36.) 

RULE  4. 
2d        3d        4th        5th  7th        8th        9th 

4.    QUORUM. 

1.  If  at  any  term    ["time"   for  "term,"   2d   circuit.    Add   after 
"term,"   "or  session,"   7th  and  9th  circuit]    a   quorum   does  not  attend 
on  any  day  appointed  for  holding  it,  any  judge  who  does  attend  may 
adjourn  the  court  from  time  to  time  [or  "from  place  to  place,"  4th  cir- 
cuit] or,  in  the  absence  of  any  judge,  the  clerk  may  adjourn  the  court 
from  day  to  day.     If,  during  a  term  [add  "or  session,"  7th  circuit] 
after  a  quorum  has  assembled,  less  than  that  number  attend  on  any  day, 
any  judge  attending  may  adjourn  the  court  from  ["time  to  time,"  6th 
circuit]  day  to  day  until  there  is  a  quorum,  or  may  adjourn  without  day 
["and  in  the  absence  of  all  the  judges,  the  clerk  may  adjourn  the  court 
from  day  to  day,"  3d  circuit]. 

2.  Any  judge  attending  when  less  than  a  quorum  is  present  may  make 
all  necessary  orders  touching  any  suit,  proceeding,  or  process,  depending 
in  or  returned  to  the  court,  preparatory  to  hearing,  trial,  or  decision 
thereof. 

1st. 

4.    QUORUM. 

1.  In  the  absence  of  a  quorum  on  any  day  appointed  for  holding  a 
term,  or  on  any  day  to  which  the  court  is  adjourned,  any  judge  who 
attends  shall  adjourn  the  court  from  day  to  day;  or,  if  no  judge  is  pres- 
ent, the  clerk  shall  so  adjourn ;  and,  in  the  absence  of  all  the  judges  and 
the  clerk,  the  marshal  or  his  deputy  shall  so  adjourn.  But  the  court 
may,  from  time  to  time,  as  provided  in  rule  3,  enter  orders  directing  an 

M»n«»l— 5* 


850  APPENDIX. 

adjournment,  or  adjournments,  for  longer  periods  than  from  day  to  day, 
or  sine  die. 

2.  Same  as  section  2  for  the  other  circuits  above. 

6th 

Same  as  section  1  for  the  5th  circuit  with  the  addition  of  the  clause 
"or,  in  the  absence  of  any  judge,  the  clerk  may  adjourn  the  court  for 
successive  intervals  of  one  week  until  a  judge  attends"  at  the  end  of 
such  section. 

There  is  no  section  2. 

RULE  5. 

5.    CLERK. 

1st       2d       8th       


1.  The  clerk's  office  shall  be  kept  at  the  place  designated  in  the  act 
creating  the  court  at  which  a  term  shall  be  held  annually. 

1.  The  clerk's  office  shall  be  kept  in  the  city  of 

3d  6th 

Philadelphia  Cincinnati 

4th  7th 

Richmond  Chicago 

5th  9th 

New  Orleans  San  Francisco 

1st         2d         3d         4th         5th         6th         7th         8th         9th 

2.  The  clerk  shall  not  practice,  either  as  attorney  or  counselor,  in  this 
court  or  in  any  other  court  [omit  balance  of  sentence  in'  6th  and  7th  cir- 
cuits] while  he  shall  continue  to  be  clerk  of  this  court. 

3.  He  shall,  before  he  enters  on  the  execution  of  his  office,  take  an 
oath  in  the  form  prescribed  by  §  794  of  the  Revised  Statutes  and  shall 
give  bond  in  a  sum  to  be  fixed  ["in  the  sum  of  $2.0,000,"  5th  circuit]  and 
with  sureties  to  be  approved,  by  the  court,  faithfully  to  discharge  the 
duties  of  his  office  and  seasonably  to  record  the  decrees,  judgments,  and 
determinations  of  the  court.     A  copy  of  such  bond  shall  be  entered  on 
the  journal  of  the  court,  and  the  bond  shall  be  deposited  for  safekeeping 
as  the  court  may  direct. 

4.  He  shall  not  permit  any  original  record  or  paper  to  be  taken  from 
the  courtroom  or  from  the  office,  without  an  order  from  the  court.1 

l  In  the  6th  circuit  add,  "or  a  judge  thereof."     In.  the  9th  circuit  add, 
"except  as  provided  in  rule  23." 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  AIM 'K  M.S.      851 


The  following  sections  are  added : 

5.  All  fees  collected  by  the  clerk,  which  are  not  properly  taxable  as 
costs  in  any  case,  and  which  are  not  by  law  required  to  be  by  him  de- 
posited in  the  Treasury  of  the  United  States,  shall  constitute  a  fond  to 
be  expended  by  the  clerk,  under  the  direction  of  the  court,  in  the  pur- 
chase of  law  books  for  the  library  of  the  court. 

6.  The  clerk  shall  keep  an  accurate  and  itemized  account  of  all  moneys 
received  by  him  officially,  including  costs  and  fees  in  cases  in  the  court 
and  fees  and  moneys  collected  on  any  account  whatever,  and  shall  de- 
posit the  same  as  received  daily  to  his  credit  as  clerk,  and  separately 
from  all  individual  accounts,  in  a  national  bank  designated  by  the  senior 
judge,  and  at  the  end  of  each  month,  and  whenever  required  by  the  court 
or  senior  judge,  shall  submit  to  the  senior  judge  a  detailed  report  show- 
ing by  items  all  moneys  received  and  all  moneys  paid  out  during  the 
month,  and  the  total  balances  on  hand  from  each  and  all  sources  of  re- 
ceipt.    Each  report  shall  be  accompanied  by  a  statement,  over  the  signa- 
ture of  the  cashier  or  other  officer  of  the  bank  in  which  the  deposit  is 
kept,  of  the  amount  in  the  bank  to  the  credit  of  the  clerk  at  the  close 
of  the  last  day  included  in  the  report. 

RULE  6. 
8.    MARSHAL,  CRIER  AND  OTHER  OFFICERS. 

3d       4th       5th  9th 

The  marshal  and  crier  shall  be  in  attendance  during  the  sessions  of  the 
court,  with  such  number  of  bailiffs  and  messengers  as  the  court  may 
from  time  to  time  order. 

1st 

Same  as  above,  omitting  the  words  "and  crier"  after  the  words  "the 
marshal." 

2d 

1.  Every  marshal  and  deputy  marshal  shall,  before  he  enters  on  the 
duties  of  his  appointment,,  take  an  oath  in  the  form  prescribed  by  §  782 
of  the  Revised  Statutes,  and  the  marshal  shall,  before  he  enters  on  the 
duties  of  his  office,  give  bond  in  a  sum  to  be  fixed,  and  with  sureties  to 
be  approved,  by  the  court,  for  the  faithful  performance  of  said  duties 
by  himself  and  his  deputies.    Said  bond  shall  be  filed  and  recorded  in 
the  office  of  the  clerk  of  the  court. 

2.  Same  as  rule  above  in  other  circuits. 


852  APPENDIX. 

6th 

1.  The  crier  and  bailiffs  of  the  district  court  of  any  district  where 
this  court  may  be  in  session,  are  hereby  authorized  to  act  also  during 
such  session  as  crier  and  bailiffs  of  this  court. 

2.  A  crier  or  bailiff  specially  appointed  for  this  court  shall,  before  he 
enters  on  his  duties,  take  an  oath  in  the  form  prescribed  by  §  782  of  the 
Revised  Statutes. 

3.  Same  as  §  1  in  3d  circuit. 

7th 

§  1  same  as  §  2  in  6th  circuit. 
§  2  same  as  rule  in  other  circuits  first  above. 

8th 

Same  as  rule  in  other  circuits  first  above  with  the  addition  of  the 
clause  "of  the  district  in  which  a  term  or  session  of  the  court  is  held," 
after  the  first  two  words,  "the  marshal." 

RULE  7. 

7.       ATTORNEYS  AND  COUNSELORS. 
1st       2d  — ~'     7th 

All  attorneys  and  counselors  admitted  to  practice  in  the  Supreme 
Court  of  the  United  States,  or  in  any  circuit  or  district  court  *  of  the 
United  States,2  shall  become  attorneys  and  counselors  in  this  court  on 
taking  an  oath  or  affirmation  in  the  form  prescribed  by  rule  2  of  the 
Supreme  Court  of  the  United  States  and  on  subscribing  the  roll ; 3  but 
no  fee  shall  be  charged  therefor. 

3d 

7.  ATTORNEYS  AND  COUNSELORS. 

Same  as  in  2d  circuit,  adding:  "and  all  attorneys  and  counselors  of 
the  district  court  of  the  United  States  for  the  3d  circuit,  shall  be 
attorneys  and  counselors  of  this  court  without  taking  any  further  oath." 

4th 
7.  ATTORNEYS  AND  COUNSELORS. 

All  attorneys  and  counselors  admitted  to  practice  in  the  Supreme 
Court  of  the  United  States,  or  in  any  District  Court  of  the  United  States, 

1  "or  district  court,"  omitted  in  1st  and  7th  circuits. 

2  "or  in  the  supreme  court  of  a  state  in  this  circuit  may  become,"  added 
in  7th  circuit. 

3  Balance  of  sentence  from  note  number  omitted  in  7th  circuit. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      853 

:  shall  become  attorneys  and  counselors  in  this  court  on  taking  an  oath  or 
affirmation  in  the  form  prescribed  by  Rule  2  of  the  Supreme  Court  of 
the  United  States,  subscribing  the  roll,  and  paying  to  the  Clerk  a  fee 
of  $5.  The  monies  received  by  the  clerk  under  this  rule  shall  be  ac- 
counted for  to  the  court,  and  be  expended  under  its  direction  for  the 
purchase  of  law  books  for  the  court  library. 

6th 
7.  ATTORNEYS  AND  COUNSELORS. 

All  attorneys  and  counselors  admitted  to  practice  in  the  Supreme 
Court  of  the  United  States,  or  any  circuit  court  of  the  United  States, 
upon  filing  certificate  of  such  admission  with  the  clerk  of  this  court,  and 
upon  taking  an  oath  or  affirmation  in  the  following  form,  viz.: 

"I, ,  do  solemnly  swear  [or  affirm]  that  I  will  demean  myself  as 

an  attorney  and  counselor  of  this  court  uprightly  and  according  to  law, 
and  that  I  will  support  the  Constitution  of  the  United  States." 

[a  copy  of  which  shall  be  filed  with  the  clerk],  shall  become  attorneys 
and  counselors  of  this  court;  provided,  however,  that  any  attorney  or 
counselor  eligible  to  admission  as  an  attorney  and  counselor  of  this  court 
may  be  admitted  to  practice,  on  motion  in  open  court,  upon  taking  the 
oath  or  affirmation  as  prescribed,  and  subscribing  the  roll. 

On  each  admission  the  clerk  will  collect  ten  dollars  ($10)  to  be  applied 
to  the  purchase  of  law  books  for  the  use  of  the  court  and  bar. 

6th 
7.  ATTORNEYS  AND  COUNSELORS. 

An  attorney  and  counselor  admitted  to  practice  and  in  pood  standing 
in  the  Supreme  Court  or  in  a  district  court  of  the  United  States,  or  in 
the  court  of  last  resort  in  the  state  of  his  residence,  may  become  attorney 
and  counselor  in  this  court  on  taking  an  oath  or  affirmation  as  prescribed 
by  role  2  of  the  Supreme  Court  of  the  United  States,  and  upon  subscrib- 
ing the  roll.  On  each  admission  the  clerk  will  collect  $10  to  be  applied 
to  the  purchase,  repair  and  rebinding  of  law  books  for  the  use  of  the 
court  and  bar.  Every  person  tnking  the  oath  and  paying  such  sum  shall 
be  entitled  to  a  certificate  of  his  admission,  signed  by  the  clerk. 

8th 
7.    ATTORNEYS  AND  COUNSELORS. 

1.  All  attorneys  and  counselors  admitted  to  practice  in  the  Supreme 
Court  of  the  United  States,  or  in  any  circuit  couFt  or  district  court  of 


854  APPENDIX. 

the  United  States,  or  in  the  supreme  court  of  any  state  in  this  circuit, 
may,  upon  motion  of  some  member  of  the  bar  of  this  court,  be  admitted 
as  attorneys  and  counselors  in  this  court  on  taking  an  oath  or  affirmation 
in  the  form  prescribed  by  rule  2  of  the  Supreme  Court  of  the  United 
States  and  on  subscribing  the  roll;  but  no  fee  shall  be  charged  therefor. 
2.  And  any  attorney  and  counselor  admitted  to  practice  in  the  Supreme 
Court  of  the  United  States  or  in  the  supreme  court  of  any  state  or  in 
the  district  or  circuit  courts  of  the  United  States  for  this  circuit,  may  be 
admitted  by  order  of  this  court  to  practice  and  may  be  enrolled  as  an 
attorney  and  counselor  of  this  court,  thirty  days  after  he  furnishes  to 
the  clerk  of  this  court  a  certificate  of  a  clerk  or  judge  of  any  one  of 
the  courts  named  that  the  applicant  is  an  attorney  of  any  one  of  said 
courts;  and  upon  subscribing  and  forwarding  to  the  clerk  the  following 
oath:  "I  do  solemnly  swear  (or  affirm)  that  I  will  demean  myself  as  an 
attorney  and  counselor  of  the  circuit  court  of  appeals  for  the  eighth  cir- 
cuit, uprightly  and  according  to  law;  and  that  I  will  support  the  Con- 
stitution of  the  United  States.  So  help  me  God." 

9th 
7.    ATTORNEYS  AND  COUNSELORS. 

All  attorneys  admitted  to  practice  in  the  Supreme  Court  of  the  United 
States,  or  in  any  District  Court  of  the  Ninth  Circuit,  shall  be  deemed 
attorneys  of  the  Circuit  Court  of  Appeals  for  the  Ninth  Circuit;  but 
such  attorneys,  on  or  before  their  first  appearance  in  open  court,  in  said 
court,  shall  take  an  oath  or  affirmation,  in  the  form  prescribed  by  Rule 
2  of  the  Supreme  Court  of  the  United  States  and  subscribe  the  Roll  of 
Attorneys.  All  other  persons  who  have  been  admitted  to  practice  in  the 
highest  court  of  any  State  or  Territory,  upon  presenting  satisfactory 
evidence  of  good  moral  character  and  fair  professional  standing,  may  be 
admitted  to  practice  in  said  court,  upon  taking  the  oath  so  prescribed, 
and  subscribing  the  Roll  of  Attorneys. 

Appearance  cannot  be  entered  unless  counsel  is  a  member  of  the  bar  of 
this  court,  or  of  the  supreme  court  of  the  United  States,  or  of  a  district 
court  within  the  ninth  circuit.  Briefs  signed  by  counsel  who  are  not  mem- 
bers of  the  bar  of  this  court  or  fully  qualified  under  the  provisions  of  this 
rule  will  not  be  considered  by  the  court. 


KULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      855 

RULE  8. 

1st        2d        3d        4th        5th        8th        9th 

8.    PRACTICE. 

The  practice  shall  be  the  same  as  in  the  Supreme  Court  of  the  United 
States,  as  far  as  the  same  shall  be  applicable. 

6th 

§  1  same  as  above. 
§  2  same  as  rule  9  in  other  circuits. 

Ttk 

8.  PRACTICE. 

The  practice,  so  far  as  may  be,  shall  be  the  same  as  in  the  Supreme 
Court  of  the  United  States. 

RULE  9. 

9.  PROCESS. 

1st        2d        3d        4th        5th  7th        8th        9th 

All  process  of  this  court  shall  be  in  the  name  of  the  President  of  the 
United  States,  and  shall  be  in  like  form  and  tested  in  the  same  manner 
as  process  of  the  Supreme  Court. 

In  the  sixth  circuit  this  is  contained  in  rule  8,  and  the  following  is 
rule  9  in  that  circuit. 

6th 
9.    SERVICE  OF  PAPERS. 

1.  Copies  of  all  papers  or  proceedings  filed  by  any  party  in  any  canse 
shall,  at  or  before  the  time  of  filing,  be  served  upon  counsel  representing 
each  adverse  interest,  and  proof  or  acknowledgment  of  such  service  shall 
be  indorsed   upon   each   paper   filed.     The  clerk  may   insist   upon   such 
proof  as  a  prerequisite  to  filing,  or  may  file  and  require  the  prompt  fur- 
nishing of  such  proof,  as  he  may  in  each  case  think  proper. 

2.  Service  may  be  personal  or  by  mail.     If  personal,  it  shall  consist 
of  delivery  at  his  office  to  counsel  or  to  a  clerk  therein.     If  by  mail,  it 
shall  consist  in  depositing  the  same  in  the  postoflfiee  with  postage  paid, 
addressed  to  the  counsel  at  his  postoffice  address,  which  address  shall 
include  his  street  and  number,  unless  the  same  are  unknown.    Each 
proof  of  service  shall  show  a  full  compliance  with  this  rule. 


856  APPENDIX. 

RULE  10. 

1st       5th       8th       9th 

10.    BILL  OF  EXCEPTIONS. 

The  judges  of  the  ["circuit  and"  omitted  in  8th  circuit]  district 
courts  shall  not  allow  any  bill  of  exceptions  which  shall  contain  the 
charge  of  the  court  at  large  to  the  jury  in  trials  at  common  law,  upon 
any  general  exception  to  the  Avhole  of  such  charge.  But  the  party  ex- 
cepting shall  be  required  to  state  distinctly  the  several  matters  of  law 
in  such  charge  to  which  he  excepts ;  and  those  matters  of  law,  and  those 
only,  shall  be  inserted  in  the  bill  of  exceptions  and  allowed  by  the  court. 

2d 

10.    BILL  OF  EXCEPTIONS. 

The  judges  of  the  district  courts  shall  not  allow  any  bill  of  exceptions 
unless  the  same  contain  the  whole  charge  of  the  court  to  the  jury.  No 
general  exception  to  the  whole  of  such  charge  shall  be  allowed,  but  the 
party  excepting  shall  be  required  to  state  distinctly  the  several  matters 
of  law  in  such  charge  to  which  he  excepts. 

3d 

10.    BILL  OF  EXCEPTIONS. 

1.  The  judges  of  the  District  Courts  shall  not  allow  any  general  ex- 
ception to  the  whole  of  the  charge  to  the.  jury  in  a  civil  or  a  criminal 
trial  at  common  law,  nor  shall  a  series  of  exceptions  be  allowed  which 
produces  the  same  result.    But  the  party  excepting  shall  state  distinctly 
and  separately  the  several  matters  in  such  charge  to  which  he  excepts, 
and  only  such  matters  shall  be  included  in  the  bill  of  exceptions  and 
allowed  by  the  court.    Exceptions  to  the  charge  or  to  the  judge's  action 
upon  the  requests  for  instruction  shall  be  taken  immediately  on  the  con- 
clusion of  the  charge  before  the  jury  retire,  shall  be  specified  in  writing 
or  dictated  to  the  stenographer,  and  shall  be  specific  and  not  general. 

2.  Exceptions  to  the  admission  or  rejection  of  evidence  shall  be  spe- 
cific and  not  general,  and  the  bill  of  exceptions  to  such  admission  or  re- 
jection shall  contain  only  so  much  of  the  evidence  admitted  or  offered 
and  rejected  as  is  necessary  for  the  presentation  and  decision  of  the 
questions  saved  for  review.     Unless  there  be  saved  a  question  which  re- 
quires the  consideration  of  all  the  evidence,  a  bill  of  exceptions  contain- 
ing all  of  it  shall  not  be  allowed. 


RULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      857 

4th 
10.    BILL  OF  EXCEPTIONS. 

1.  Same  as  1st  circuit,  omitting  "circuit  and  "  in  first  line. 

2.  Only  so  much  of  the  evidence  shall  be  embraced  in  a  bill  of  excep- 
tions as  may  be  necessary  to  present  clearly  the  questions  of  law  in- 
volved in  the  rulings  to  which  exceptions  are  reserved,  and  such  evidence 
as  is  embraced  therein  shall  be  set  forth  in  condensed  and  narrative 
form,  save  as  a  proper  understanding  of  the  questions  presented  may 
require  that  parts  of  it  be  set  forth  otherwise. 

6th 
10.    BILL  OF  EXCEPTIONS. 

1.  The  assignments  of  error  required  by  rule  11  shall  be  filed  at  or 
before  the  settling  of  the  bill  of  exceptions.     The  evidence  in  a  bill  of 
exceptions  shall  not  be  set  forth  in  full,  but  shall  be  stated  in  simple 
and  condensed  form,  all  parts  not  essential  to  the  decision  of  some  one 
of  the  questions  presented  by  the  assignments  of  error  being  omitted, 
and  the  testimony  of  witnesses  being  stated  only  in  narrative  form,  save 
that,  if  either  party  desires  it  and  the  judge  s6  directs,  any  part  of  the 
testimony  shall  be  reproduced  in  the  exact  words  of  the  witness. 

2.  No  general  exception  to  the  whole  or  any  charge  to  a  jury  on  trials 
at  law  shall  be  allowed  in  any  bill  of  exceptions.    Exceptions  to  charge, 
in  order  to  be  allowed  in  a  bill  of  exceptions,  must  be  taken  before  the 
jury  retires  and  must  state  distinctly  the  sevtral  mat.ters  of  law  to 
which  exception  is  taken.    In  cases  where  exception  is  taken  to  part  of 
a  charge,  and  such  exception  may  be  affected  by  other  parts  or  by  the 
charge  as  a  whole,  the  entire  charge  shall  be  included  in  the  bill  of 
exceptions. 

7th 
10.    BILL  OF  EXCEPTIONS  AND  TRANSCRIPT. 

1.  Same  as  1st  circuit. 

2.  A  bill  of  exceptions  shall  contain  of  the  evidence  only  such  a  state- 
ment as  is  necessary  for  the  presentation  and  decision  of  questions  saved 
for  review  and  unless  there  be  saved  a  question  which  requires  the  con- 
sideration of  all  the  evidence,  a  bill  of  exceptions  containing  all  the  evi- 
dence shall  not  be  allowed. 

3.  No  document  shall  be  copied  more  than  once  in  a  bill  of  exceptions 
or  in  a  transcript  of  the  record  of  the  case,  but  instead  there  shall  be 
inserted  a  reference  to  the  one  copy  set  out.     A  motion  for  a  new  trial 
and  orders  and  entries  relating  thereto  shall  not  be  set  out  in  the  tran- 


858  APPENDIX. 

script   unless  required   by  written   precipe,  of  which   a  copy  shall   also 
be  set  out. 

4.  The  cost  of  unnecessary  matter  in  the  bill  ef  exceptions  or  tran- 
script or  in  the  printed  record  shall  not  be  recovered  of  the  appellee  or 
defendant  in  error,  and  in  its  discretion  the  court  will  in  case  of  dispute 
appoint  a  referee  to  determine  and  report  what  was  necessary  therein, 
and  will  tax  the  cost  of  the  reference  as  shall  seem  just. 

RULE  11. 
1st        2d  4th  7th        8th        9th 

ASSIGNMENT  OF  ERRORS. 

The  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  of  the  court 
below,  with  his  petition  for  the  writ  of  error  or  appeal,  an  assignment 
of  errors,  which  shall  set  out1  separately  and  particularly  each  error 
asserted  and  intended  to  be  urged.  No  writ  of  error  or  appeal  shall 
be  allowed  until  such  assignment  of  errors  shall  have  been  filed.  When 
the  error  alleged  is  to  th^  admission  or  to  the  rejection  of  evidence,  the 
assignment  of  errors2  shall  quote  the  full  substance  of  the  evidence  ad- 
mitted or  rejected.  When  the  error  alleged  is  to  the  charge  of  the 
court,  the  assignment3  of  errors  shall  set  out  the  part  referred  to  totidem 
verbis,  whether  it  be  in  instructions  given  ox1  in  instructions  refused.4 
Such  assignment  of  errors  shall  form  part  of  the  transcript  of  the  rec- 
ord and  be  printed  with  it.  When  this  is  not  done,  counsel  will  not  be 
heard,  except  at  the  request  of  the  court;  and  errors  not  assigned  ac- 
cording to  this  rule  will  be  disregarded,  but  the  court,  at  its  option,  may 
notice  a  plain  error  not  assigned. 

1  In  the  7th  circuit  substitute  "specify"  for  the  words  "set  out." 

2  Substitute  "specification  of  the  error"  for    "assignment  of  errors." 

3  Substitute  "each  specification"  for  "the  assignment." 

4  Add  "and  shall  state  distinctly  the  grounds  of  objection  to  an  instruction 
given." 

In  the  7th  circuit  a  note  refers  to  rule  24.  In  the  9th  circuit,  see  note  to 
admiralty  rule  1. 

3d 

11.    ASSIGNMENT  OF  ERRORS. 

The  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  of  the  court 
below,  with  his  petition  for  the  writ  of  error  or  appeal,  his  assignments 
of  error,  as  required  by  §  997  of  the  Rev.  Stats.,  which  shall  set  out  sepa- 
rately and  particularly  each  error  asserted  and  intended  to  be  urged. 
(See  rule  14,  §  6.) 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      859 

When  the  error  alleged  is  to  the  admission  or  the  rejection  of  evi- 
dence, the  assignment  shall  quote  the  full  substance  of  the  evidence 
admitted  or  rejected;  when  the  error  alleged  is  to  the  charge  of  the  court, 
the  assignment  shall  set  out  the  part  referred  to  totidem  verbis,  whether 
it  be  in  instructions  given  or  in  instructions  refused;  when  the  error 
alleged  is  based  on  the  trial  court's  refusal  to  enter  a  judgment  non 
obstante  veredicto  for  the  plaintiff  in  error  on  the  whole  record,  the 
assignment  shall  state  the  reasons  presented  to  the  trial  court  for  the 
entry  of  such  judgment,  when  the  error  alleged  is  to  a  ruling  upon  the 
report  of  a  master  or  referee,  the  assignment  shall  state  the  exception 
to  the  report  and  the  action  of  the  court  upon  it.  Such  assignments  of 
error  shall  form  part  of  the  transcript  of  the  record,  and  be  printed  with 
it.  When  error  is  not  so  assigned,  counsel  will  not  be  heard,  except  at 
the  request  of  the  court;  and  errors  not  assigned  according  to  this  rule 
will  be  disregarded.  The  court,  at  its  option,  however,  may  notice  a 
plain  error  not  assigned. 

5th 
11.    ASSIGNMENT  OF  ERRORS. 

The  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  of  the  court 
below  with  his  petition  for  the  writ  of  error  or  appeal,  an  assignment  of 
errors,  which  shall  set  out  separately  and~particularly  each  error  asserted 
and  intended  to  be  urged.  No  writ  of  error  or  appeal  shall  be  allowed 
until  such  assignment  of  error  shall  have  been  filed.  When  the  error 
alleged  is  to  the  admission  or  to  the  rejection  of  evidence,  the  assignment 
of  errors  shall  quote  the  full  substance  of  the  evidence  admitted  or  re- 
jected. When  the  error  alleged  is  to  the  charge  of  the  court,  the  assign- 
ment of  errors  shall  set  out  the  part  referred  to  totidem  verbis,  whether 
it  be  in  instructions  given  or  in  instructions  refused.  Such  assignment  of 
errors  shall  form  part  of  the  transcript  of  the  record  and  be  printed 
with  it.  When  this  is  not  done,  counsel  will  not  be  heard,  except  at  the 
request  of  the  court,  and  errors  not  assigned  according  to  this  rule  will 
be  disregarded,  but  the  court,  at  its  option,  may  notice  a  plain  error  not 
assigned. 

6th 
11.    ASSIGNMENT  OF  ERRORS. 

The  appellant  shall  file  with  the  clerk  of  the  District  Court  at  or  before 
the  time  of  filing  his  petition  for  the  writ  of  error  or  appeal,  an  assign- 
ment of  errors,  which  shall  set  out  separately  and  particularly  each  error 
asserted  and  intended  to  be  urged.  No  writ  of  error  or  appeal  shall  be 


860  APPENDIX. 

allowed  until  such  assignment  of  errors  shall  have  been  filed.  When  the 
error  alleged  is  to  the  admission  or  to  the  rejection  of  evidence,  the 
assignment  of  errors  shall  quote  the  full  substance  admitted  or  rejected. 
When  the  error  alleged  is  to  the  charge  of  the  court,  the  assignment  of 
errors  shall  set  out  the  part  referred  to  totidem  verbis,  whether  it  be  in 
instructions  given  or  in  instructions  refused.  When  this  is  not  done, 
counsel  will  not  be  heard,  except  at  the  request  of  the  court,  and  errors 
not  assigned  according  to  this  rule  will  be  disregarded ;  but  the  court,  at 
its  option,  may  notice  a  plain  error  not  assigned. 

RULE  12. 

1st         2d         8d         4th         5th         6th         7th         8th         9th 
OBJECTIONS  TO  EVIDENCE  IN  THE  RECORD. 

In  all  cases  of  equity  or  admiralty  jurisdiction,  heard  in  this  court,  no 
objection  shall  be  allowed  to  be  taken  to  the  admissibility  of  any  depo- 
sition, deed,  grant,  exhibit,  or  translation,  found  in  the  record  as  evi- 
dence, unless  l  objection  was  taken  thereto  in  the  court  below  and  entered 
of  record ;  but  the  same  shall  otherwise  be  deemed  to  have  been  admitted 
by  consent. 

i  In  the  6th  circuit,  for  the  words  following  note  number,  "objection  was 
taken  thereto  in  the  court  below  and  entered  of  record,"  substitute  "the 
record  shows  that  objection  was  taken  thereto  in  the  court  below  and 
brought  to  the  attention  of  the  trjal  judge  on  the  submission  of  the  cause." 

RULE  13  (Two  Sections). 

1st         2d         3d         4th         5th  7th         8th         9th 

SUPERSEDEAS  AND  COST  BONDS. 

1.  Supersedeas  bonds  in  the  circuit  and  1  district  courts  must  be  taken 
with  good  and  sufficient  security,  that  the  plaintiff  in  error  or  appellant 
shall  prosecute  his  writ  or  appeal  to  effect,  and  answer  all  damages  and 
costs,  if  he  fail  to  make  his  plea  good.  Such  indemnity,  where  the 
judgment  or  decree  is  for.  the  recovery  of  money  not  otherwise  secured, 
must  be  for  the  whole  amount  of  the  judgment  or  decree,  including  just 
damages  for  delay,  and  costs  and  interest2  on  the  appeal;  but,  in  all 
suits  where  the  property  in  controversy  necessarily  follows  the  suit,  as  in 
real  actions  and  replevin,  and  in  suits  on  mortgages,  or  where  the  prop- 
erty is  in  the  custody  of  the  marshal  under  admiralty  process,  or  where 
the  proceeds  thereof,  or  a  bond  for  the  value  thereof,  is  in  the  custody 
of  the  court,  indemnity  in  all  such  cases  will  be  required  only  in  an 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      861 

amount  sufficient  to  secure  the  sum  recovered  for  the  use  and  detention 
of  the  property,  and  the  costs  of  the  suit  and  just  damages  for  delay  and 
costs  and  interest  2  on  the  appeal. 

1  The  words  "circuit  and"  appear  in  the  1st  and  7th  circuit!  but  are 
omitted  in  the  2d,  3d,  4th,  5th,  8th  and  9th  circuits. 

2  In  the  7th  circuit  the  words  "costs  and  interest"  arc  transposed  to 
read  "interest  and  costs." 

6th 
13.    ALLOWANCE  OF  WRIT  OF  ERROR  OR  APPEAL. 

1.  An  appeal  from  or  writ  of  error  to  a  District  Court  in  the  cases 
provided  for  in  sections  128,  .129  and  130  of  the  Judicial  Code  approved 
March  3,  1911,  may  be  allowed  in  term  time  or  in  vacation  by  the  Cir- 
cuit Justice,  wherever  acting,  or  by  any  Circuit  Judge  acting  within  the 
circuit,  or  by  any  District  Judge  acting  within  the  district  where  the 
case  was  heard  and  authorized  to  hold  court  in  that  district;  and  the 
proper  security  may  be  taken  and  the  citation  be  signed  by  him  and  he 
may  also  grant  a  supersedeas  and  stay  of  execution  or  of  proceedings 
pending  such  writ  of  error  or  appeal. 

2.  Where  such  writ  of  error  is  duly  allowed  in  a  criminal  case  the  Dis- 
trict Court  in  which  the  conviction  occurred,  or  this  court,  or  any  judge 
of  either  court,  shall  have  power  after  the  citation  is  served,  to  admit 
the  accused  to  bail  in  such  amount  as  may  be  fixed. 

(The  provisions  for  "Supersedeas  and  Cost  Bonds"  in  the  6th  circuit 
are  in  rule  14  for  that  circuit.) 

RULE  13  (Section  2). 
3d       7th  9th 

2.  On  all  appeals  from  any  interlocutory  order  or  decree  granting  or 
continuing  an  injunction  in  a1  district  court,  the  appellant  shall,  at 
the  time  of  the  allowance  of  said  appeal,  file  with  the  clerk  of  such1 
district  court  a  bond  to  the  opposite  pajty  in  such  sum  as  such  court 
shall  direct,  to  answer  all  costs  if  he  shall  fail  to  sustain  his  appeal. 

1st 

2.  On  an  appeal  from  an  interlocutory  order  or  decree,  the  appellant 
shall,  at  the  time  of  the  allowance  thereof,  file  a  bond  to  the  ad\< 
party  in  such  sum  as  the  judge  who  allowed  the  appeal  shall  direct,  to 
answer  all  costs  if  he  shall  fail  to  sustain  his  appeal 

l  Add  in  7th  Circuit,  "circuit  or." 


862  APPENDIX, 

i 

2d 

L  On  all  appeals  from  any  interlocutory  order  or  decree,  taken  under 
the  provisions  of  section  129  of  the  Act  to  codify,  revise  and  amend  the 
laws  relating  to  the  judiciary,  the  appellant  shall,  at  the  time  of  the 
allowance  of  said  appeal,  fi]p  with  the  clerk  of  the  district  court  a  bond 
to  the  opposite  party  in  such  sum  as  such  court  shall  direct,  to  answer 
all  costs  if  he  shall  fail  to  sustain  his  appeal. 

4th 

2.  On  all  appeals  under  section  129  of  the  Judicial  Code,  the  appellant 
shall  at  the  time  of  the  allowance  of  said  appeal,  if  required  by  the  judge 
of  the  court  below,  file  with  the  clerk  of  such  court  a  bond  to  the  oppo- 
site party  in  such  sum  as  such  judge  shall  direct,  for  all  costs  and  dam- 
ages, or  simply  for  all  costs,  as  the  said  judge  shall  determine,  if  he 
shall  fail  to  sustain  his  appeal. 

5th 

2.  On  all  appeals  from  any  interlocutory  order  or  decree  granting  or 
continuing  an  injunction  in  a  circuit  or  district  court,  the  appellant  shall, 
at  the  time  of  the  allowance  of  said  appealj  file  with  the  clerk  of  such 
circuit  or  district  court  a  bond  to  the  opposite  party  in  such  sums  as  such 
court  shall  direct,  to  answer  all  costs  if  he  shall  fail  to  sustain  the  appeal. 

6th 

See  both  sections  of  rule  in  6th  circuit  quoted  under  section  1,  rule  13 
above. 

8th 

2.  On  all  appeals  from  any  interlocutory  order  or  decree  of  a  district 
court,  or  a  judge  thereof,  granting,  continuing,  refusing,  dissolving  or 
refusing  to  dissolve  an  injunction  or  appointing  a  receiver,  the  appellant 
shall,  at  the  time  of  the  allowance  of  said  appeal,  file  with  the  clerk  of 
such  district  court  a  bond  to  the  opposite  party  in  such  sum  as  such  court 
shall  direct,  to  answer  all  costs  if  he  shall  fail  to  sustain  his  appeal. 

(The  Judicial  Code,  section  128,  Act  of  March  3,  1911.) 

RULE  14. 


WRITS  OF  ERROR,  APPEALS,  RETURN,  AND  RECORD. 

1.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  directed 
shall  make  a  return  of  the  same  by  transmitting  a  true  copy  of  the  rcc- 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      8fi3 

ord,  bill  of  exceptions,  assignment  of  errors,  and  all  proceedings  in  th« 
case,  under  his  hand  and  the  seal  of  the  court. 

2.  In  all  cases  brought  to  this  court  by  writ  of  error  or  appeal  to  re- 
view any  judgment  or  decree,  the  clerk  of  the  court  by  which  such  judg- 
rn^nt  or  decree  was  rendered  shall  annex  to  and  transmit  with  the  record 
a  copy  of  the  opinion  or  opinions  filed  in  the  case. 

3.  No  case  will  be  heard  until  a  complete  record,  containing  in  itself, 
and  not  by  reference,  all  the  papers,  exhibits,  depositions,  and  other  pro- 
ceedings which  are  necessary  to  the  hearing  in  this  court  shall  be  filed. 

4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of  the  pre- 
siding judge  in  any  circuit  or  district  court,  that  original  papers  of  any 
kind  should  be  inspected  in  this  court  upon  writ  of  error  or  appeal,  such 
presiding  judge  may  make  such  rule  or  order  for  the  safekeeping,  trans- 
porting and  return  of  such  original  papers  as  to  him  may  seem  proper; 
and  this  court  will  receive  and  consider  such  original  papers  in  connec- 
tion with  the  transcript  of  the  proceedings. 

5.  All  appeals,  writs  of  error,  and  citations,  must  be  made  returnable1 
not  exceeding  thirty  days  from  the  day  of  signing  the  citation,  whether 
the  return  day  fall  in  vacation  or  in  term  time,  and  be  served  before  the 
return  day. 

6.  The  record  in  cases  of  admiralty  and  maritime  jurisdiction  shall  be 
made  up  as  provided  in  general  admiralty  rule  No.  52  of  the  Supreme 
Court.     The  testimony  in  such  a  record  shall  embrace  the  viva  voce  proof 
in  the  district  court,  if  the  same,  or  the  substance  thereof,  has  been  re- 
duced to  writing  with  the  approval  of  its  judge.     The  reasonable  cost 
of  so  reducing  the  same  to  writing  may  be  taxed  as  a  part  of  the  costs 
of  the  record,  except  so  far  as  allowed  as  costs  in  the  district  court. 

7.  Further  proof  in  instance  causes  in  admiralty  shall  include  only 
that  which  could  not  with  diligence  have  been  had  at  the  trial  below,  or 
which  was  there  rejected,  or  was  omitted  through  misapprehension,  pro- 
vided the  evidence  be  accompanied  witfi  a  certificate  of  counsel  showing 
reasonable  excuse  for  the  misapprehension.    Except  by  order  of  the 
court  first  obtained,  merely  cumulative  proofs  shall  not  be  so  taken ;  but 
for  this  purpose  the  evidence  of  witnesses  who  had  different  duties, 
interests,  or  opportunities  of  observation,  will  not  ordinarily  be  held 
cumulative  in  cases  of  collision  or  other  maritime  tort. 

8.  Such  further  proof  may  be  taken  after  the  appeal  is  allowed,  in 
the  manner  provided  by  law  for  depositions  df  bene  esse,  or  by  any 
examiner  appointed  by  any  circuit  or  district  judge,  or  selected  by  the 
parties,  or  upon  interrogatories  and  commissions  as  provided  in  rule  13 
of  the  circuit  courts  of  this  circuit,  mutatis  mutandis.     It  must  be  taken 

l  Add  in  9th   circuit,  "at  San   Francisco,  California." 


864  APPENDIX. 

and  filed  forthwith  after  it  is  obtainable,  but  it  cannot,  except  by  order 
of  the  court,  be  taken  or  filed  within  thirty  days  before  any  session  at 
which  the  cause  may  be  heard,  nor  thereafterwards  until  the  cause  has 
been  postponed  to  the  next  term  or  session. 

9.  Objections  to  further  proof  shall  be  filed  with  the  magistrate  and 
returned  with  the  evidence.     Within  seven  days  after  the  evidence  is 
taken,  the  party  so  objecting  may  file  in  print  a  motion  to  suppress  the 
same,  with  a  copy  of  the  objections  and  a  brief.     The  other  party  may 
within  seven  days  thereafter  file  in  print  a  counter-statement  and  brief. 
The  objections  and  counter-statement,  so  far  as  they  contain  matters  of 
fact   dehors  the  record,  shall  be   verified  by  affidavit.     The   court   will 
consider  the  objections  in  advance  of  the  trial,  or  in  connection  there- 
with, as  it  may  in  each  case  determine,  and  without  oral  argument,  and 
will  order  suppressed  evidence  not  rightfully  taken.     The  party  taking 
the  evidence  so  suppressed  shall  pay  the  costs  arising  therefrom,  includ- 
ing the  printing  thereof. 

10.  Nothing  herein  shall  exclude  applications  for  leave  to  take  fur- 
ther proof,  or  objections  thereto,  in  advance  of  the  taking  thereof,  or 
objections  touching  the  formalities  of  taking  it;  but  the  latter  must  be 
brought  to  the  attention  of  the  court  forthwith  after  the  evidence  is 
filed. 

2d 

14.  WRIT  OF  ERROR,  APPEALS,  RETURN,  AND  RECORD. 

Sections  1  to  5  the  same  as  those  of  1st  circuit,  except  for  omission 
of  the  words  "circuit  or"  before  the  words  "district  court"  in  section  4. 

6.  The  record  in  cases  of  admiralty  and  maritime  jurisdiction  shall  be 
made  up  as  provided  in  general  admiralty  rule  No.  52  of  the  Supreme 
Court. 

3d 

14.    WRIT  OF  ERROR,  APPEALS,  RETURNS,  AND  RECORD. 

1.  Any  appeal  to  this  court,  or  writ  of  error  from  this  court,  allow- 
able by  law,  may  be  allowed  in  term  time  or  vacation,  by  the  Circuit 
Justice,  or  by  any  of  the  Circuit  Judges  within  this  Circuit,  or  by  any 
district  Judge  within  the  district  where  the  case  to  be  reviewed  was 
heard  or  tried,  who  may  also  take  the  proper  security,  sign  the  citation, 
and,  if  he  deem  it  proper  so  to  do,  grant  a  supersedeas  and  stay  of  exe- 
cution or  proceedings  pending  such  writ  of  error  or  appeal.  Whenever 
an  appeal  or  a  writ  of  error  to  this  court  shall  be  allowed  by  a  District 
Judge,  or  shall  be  issued  by  the  clerk  of  a  District  Court,  the  clerk  of 


RULES  OK  TUB  UNITED  STATES  CIRCUIT  COURTS  OF  APl'UALS.      805 

"  the  District  Court  shall  give  immediate  notice  thereof  to  the  clerk  of 
this  court. 

2.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  directed, 
or  from  which  any  appeal  may  be  taken,  npou  being  paid  or  tendered 
his  fees  therefor,  shall  make  a  return  of  the  same  by  transmitting  a 
true  copy  of  the  record,  bill  of  exceptions,  assignment  of  errors,  and  all 
proceedings  in  the  case,  under  his  hand  and  the  seal  of  the  court. 

3,  4,  5,  same  as  sections  2,  3,  4,  for  the  1st  circuit, 'except  that  it  omits 
the  words  'circuit  and"  before  the  words  "district  court." 

6.  Same  as  section  5  for  the  1st  circuit,  with  the  addition  of  th'e  fol- 
lowing clause:  "But  the  citation  must  be  signed,  and  the  bond  for  costs 
must  be  approved  and  filed,  and  the  assignments  of  error  submitted  and 
filed,  with  the  petition  for  the  appeal  or  writ  of  error,  immediately  after 
the  appeal  or  writ  of  error  is  allowed:  Provided,  however,  that  every 
appeal  taken  from  an  interlocutory  decree,  under  the  seventh  section  <>t 
the  act  entitled  'An  act  to  establish  Circuit  Courts  of  Appeals,  and  to 
define  and  regulate  in  certain  cases  the  jurisdiction  of  the  courts  of  the 
United  States,  and  for  other  purposes,'  approved  March  3,  1891,  and 
amendments  to  said  section  shall  be  made  returnable  in  ten  days  from 
the  allowance  of  the  appeal  and  the  signing  of  the  citation." 

7.  The  records  in  cases  of  admiralty  and  maritime  jurisdiction  shall 
be  made  up  in  the  same  manner,  as  nearly  as  practicable,  as  are  the  rec- 
ords in  equity  cases. 

4th 
14.    WRITS  OF  ERROR,  APPEALS,  RETURN",  AND  RECORD. 

1.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  dim-ted 
shall  (except  as  otherwise  provided  by  rule  23)  make  return  of  the  snmc, 
by  certifying  under  his  hand  and  the  seal  of  said  court,  in  accordance 
with  the  act  of  Congress  of  February  13,  1911  (36  Stats.  901),  and  trans- 
mitting to  the  clerk  of  this  court  one  of  the  printed  transcripts  of  the 
record  provided  for  by  said  act.     In  all  cases  of  appeal  and  also  in  all 
cases  of  petition  for  revision  in  bankruptcy  said  clerk  shall  lik( 
certify,  seal  and  transmit  a  copy  of  the  printed  transcript  of  the  record 
to  the  clerk  of  this  court. 

2.  In  every  printed  transcript  of  the  record  the  order  of  the  parts 
thereof  shall  substantially  follow  the  order  in  which  the  same  \\ 
entered  or  made,  and  shall  contain  a  copy  of  such  opinion  or  opinio; 

the  trial  judge  as  may  have  been  filed.  It  shall  be  suitably  indexed,  and 
where  any  deposition  or  report  of  evidence  requires  more  than  one 
printed  page  the  name  of  the  deponent  or  witness  shall  be  printed  at  the 

M»nn»l— 6« 


866  APPENDIX. 

top  of  each  page.     And  the  foregoing  shall,  so  far  as  may  be  applicable, 
apply  to  the  printed  addenda  to  records  hereinafter  provided  for. 

3.  Except  in  cases  where  counsel  shall  agree  by  written  and  signed 
stipulation, — which  shall  be  a  part  of  the  record, — as  to  what  portions 
of  the  record  and  proofs  of  the  case  in  the  court  below,  shall  be  printed 
in  the  transcript  of  the  record  for  use  in  this  court,  the  trial  judge  shall 
have  the  power,  upon  application  after  reasonable  notice  to  the  opposing 
party  or  his  counsel,  to  determine  what  shall  be  included  in  such  tran- 
script, and  his  determination  shall  be  signed  by  him,  and  made  part  of 
the  record;  he  shall  include  in  such  signed  paper,  such  portions  of  the 
record  and  of  the  proofs  as  he  may  deem  material  for  the  proper  dis- 
position of  the  questions  to  be  decided  by  this  court,  as  also  such  parts 
as  are  specially  required  by  these  rules.    But  if  any  party   desires 
printed  any  document  or  part  of  the  record  or  proofs  directed  by  the 
trial  judge  to  be  omitted,  such  party  may  print  the  same  under  separate 
cover  and  cause  it  to  be  certified  and  transmitted  to  this  court  as  an 
addendum  to  the  record.     Such  printing  and  certification  shall  be  pri- 
marily at  the  cost  of  the  party  who  requires  it.     The  cover  sheet  of  such 
addendum  shall  contain  the  title  of  the  cause  and  shall  plainly  show 
fnat  it  is  an  addendum  to  the  transcript  and  shall  show  at  whose  instance 
it  was  printed. 

4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of  this 
court  or  of  the  court  below,  that  original  papers  of  any  kind  should  be 
inspected  here,  this  court  or  the  court  below  may  make  such  rule  or 
order   for    the   safekeeping,    transporting    and    return    of    such   original 
papers  as  to  it  may  seem  proper. 

5.  All  appeals,  writs  of  error  and  citations  must  be  made  returnable 
not  exceeding  forty  days  from  the  day  of  signing  the  citation,  whether 
the  return  day  fall  in  vacation  or  in  term  time,  and  be  served  before 
the  return  day. 

6.  The  transcript  of  the  record  in  cases  of  admiralty  and  maritime 
jurisdiction  shall  include  the  matters  which,  by  admiralty  rule  52  of  the 
Supreme  Court  are  required  to  be  included  therein. 

7.  No  transcript  of  the  record  and  proofs  shall  (unless  it  be  specifically 
otherwise  ordered  by  the  trial  judge)  contain  a  copy  of  the  petition  for 
writ  of  error  or  petition  for  appeal,  the  order  granting  writ  of  error  or 
appeal,  the  writ  of  error,  the  appeal  bond,  the  citation,  the  return  of 
service  or  waiver  of  service  of  citation,  in  lieu  thereof  the  originals  of 
said  documents  shall  be  certified  to  this  court  within  forty  days  of  the 
date  of  the  citation  (all  to  be  returned  to  the  court  below  with  the  man- 
date of  this  court  except  the  citation  and  writ  of  error)   and  in  said 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      867 

* 

-  transcript  there  shall  be  inserted  a  memorandum  stating  the  date  of  the 
petition  for  writ  of  error  or  for  appeal,  the  date  of  the  order  granting 
writ  of  error  or  allowing  appeal,  the  date  of  the  writ  of  error  and  date 
when  copy  thereof  or  copy  of  order  allowing  appeal  is  lodged  in  the 
office  of  the  clerk  of  the  court  below  for  adverse  parties,  the  date,  pen- 
alty, the  names  of  the  obligors,  the  condition  (whether  for  payment  of 
costs  and  damages  or  for  costs  alone)  of  the  appeal  bond,  the  date  of 
the  citation,  and  the  date  of  the  service  thereof  or  of  the  waiver  of 
service  thereof. 

No  general  replication  in  equity  shall  be  copied  into  the  transcript  of 
the  record,  but  in  lieu  thereof  there  shall  be  inserted  a  memorandum 
showing  the  date  of  filing  of  such  replication  and  by  whom  filed.  When 
a  case  has  by  writ  of  error  or  appeal  been  brought  to  this  court  the 
second  time,  there  shall  only  be  copied  in  the  record  the  proceedings 
subsequent  to  the  former  writ  of  error  or  appeal.  It  shall  be  the  duty 
of  the  trial  judge  in  determining  what  shall  constitute  said  transcript 
of  the  record,  to  direct  the  omission  of  all  matter  which  in  his  judg- 
ment is  unnecessary  to  the  presentation  of  the  issues  to  be  passed  upon 
by  this  court  and  especially  to  prevent  unnecessary  duplications  in  such 
transcript.  And  the  clerk  below  shall  not  certify  any  transcript  of  the 
record  and  proofs  unless  it  contains  cither  the  stipulation  of  counsel  or 
the  determination  of  the  trial  judge  mentioned  in  §  3  of  this  rule. 

8.  Whenever  the  printed  transcript  of  the  record  or  any  addendum 
thereto  as  certified  by  the  clerk  of  the  court  below  shall  contain  any 
corrections  or  insertions,  it  shall  be  the  duty  of  the  party  filing  the 
printed  transcript  or  addendum  in  this  court  to  correct  all  the  copies 
of  the  same  so  as  to  correspond  with  the  certified  transcript  or  addendum. 

5th 
14.    WRITS  OF  ERROR,  APPEALS,  RETURN  AND  RECORD. 

Sections  1  to  4  same  as  corresponding  sections  for  the  1st  circuit. 

5.  All  appeals,  writs  of  error  and  citations  must  be  made  returnable 
and  the  transcript  filed  in  the  clerk's  office  at  New  Orleans  not  exceed- 
ing thirty  days  from  the  day  of  signing  the  citation,  whether  the  return 
day  fall  in  vacation  or  in  term  time,  and  be  served  before  the  return 
day. 

Provided,  however,  that  appeals  taken  from  interlocutory  decrees 
under  the  seventh  section  of  the  act  entitled  "An  act  to  establish  Cir- 
cuit Courts  of  Appeal  and  define  and  regulate  in  certain  cases  the  juris- 
diction of  the  courts  of  the  United  States  and  for  other  purposes," 
approved  March  3,  1891,  and  amendments  thereto,  shall  be  made  return- 


868  APPENDIX. 

able  not  exceeding  ten  days  from  the  day  of  taking  the  same.     (As 
amended  Jan.  12,  1905.) 

6.  Same  as  section  6  for  the  2d  circuit. 

6th 
14.    SUPERSEDEAS  AND  COST  BONDS. 

1.  Upon  the  allowance  of  any  appeal  to,  or  writ  of  error  from,  this 
court  (except  when  allowed  to  a  party  proceeding  in  forma  pauperis,  or 
in  other  case  where,  by  statute,  no  bond  is  required),  the  court  or  judge 
allowing  shall  take  and  approve  a  bond  with  good  and  sufficient  security 
that  the  appellant  shall  prosecute  his  writ  or  appeal  to  effect,  and  answer 
all  costs  if  he  fail  to  make  his  plea  good. 

2.  If  the  appeal  or  writ  of  error  is  to  operate  as  a  eupersedeas,  the 
court  or  judge  shall,  in  the  allowance,  order  that  it  have  such  effect  upon 
the  filing  of  the  required  bond,  and  in  such  case,  the  bond  shall  be  con- 
ditioned to  answer  all  damages  and  costs.     Such  indemnity,  where  the 
judgment  or  decree  is  for  the  recovery  of  money  not  otherwise  secured, 
must  be  for  the  whole  amount  of  the  judgment  or  decree,  including  just 
damages  for  delay,  and  costs  and  interest  on  the  appeal ;  but  in  all  suits 
where  the  property  in  controversy  necessarily  follows  the  suit,  as  in  real 
actions  and  replevin,  and  in  suits  on  mortgages,  or  where  the  property 
is  in  the  custody  of  the  marshal  under  admiralty  process,  or  where  the 
proceeds  thereof,  or  a  bond  for  the  value  thereof,  are  in  the  custody  of 
the  court,  indemnity  will  be  required  only  in  an  amount  sufficient  to 
secure  the  sum  recovered  for  the  use  and  detention  of  the  property,  and 
the  costs  of  the  suit  and  just  damages  for  delay,  and  costs  and  interest 
on  the  appeal. 

•    7th 
14.    WRITS  OF  ERROR,  APPEALS,  RETURN  AND  RECORD. 

1.  The  clerk  of  the  court,  to  which  any  writ  of  error  may  be  directed, 
shall  make  a  return  of  the  same  by  transmitting  a  true  copy  of  the  rec- 
ord, bill  of  exceptions,  assignment  of  errors,  and  all  proceedings  in  the 
case  necessary  to  the  hearing  in  this  court,  under  his  hand  and  the  seal 
of  the  court.     The  clerk  may  require  of  the  appellant  or  plaintiff  in 
error  a  written  precipe  stating  in  detail  what  the  transcript  shall  coji- 
tain,   and   when   a   precipe   is   filed   shall   insert   a   copy    thereof   in    the 
transcript. 

2.  Same  as  section  2  for  the  1st  circuit. 

3.  No  case  will  be  heard  until  a  complete  record  shall  have  been  filed, 
containing  in  itself,  and  not  by  reference,  all  the  papers,  exhibits,  depo- 
sitions, and  other  proceedings  necessary  to  the  hearing  in  this  court. 


BULBS  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  A1-PKA.LS.      869 

P 

4.  Same  as  section  4  for  the  1st  circuit. 

5.  All  appeals,  writs  of  error  and  citations  must  be  made  returnable 
not  exceeding  thirty  days  from  the  date  on  which  the  appeal  is  allowed, 
or  the  writ  of  error  issued,  whether  the  return  fall  in  vacation  or  in 
term  time,  and  be  served  before  the  return  day.     "If  a  party  be  nonresi- 
dent the  citation  and  any  other  writ  or  notice  necessary  in  the  prosecu- 
tion of  the  appeal  or  writ  of  error  may  be  served  upon  such  party's 
counsel  or  attorney  of  record,  who  for  such  purpose  may  not  be  dis- 
charged unless  another  resident  be  designated  of  record  in  the  case  upon 
whom  service  may  be  made." 

6.  Same  as  in  1st  circuit. 

8th 
14.  WRITS  OF  ERROR,  APPEALS,  RETURN,  AND  RECORD. 

1  and  2  same  as  for  the  1st  circuit,  adding  in  2  the  following:  "And 
in  cases  at  law  a  complete  copy  of  the  charge  of  the  court  to  the  jury." 

3.  No  case  will  be  heard  until  twenty-five  copies  of  the  printed  tran- 
script of  the  record,  containing  in  themselves,  and  not  by  reference,  all 
the  papers,  exhibits,  depositions,  sketches,  drawings,  photographs,  maps, 
blue-prints  and  other  proceedings,  which  are  necessary  to  the  hearing  in 
this  court,  printed  title  pages  in  the  form  prescribed  in  §  5  of  rule  26, 
chronological  printed  indexes  of  each  and  every  item  of  their  contents 
specifying  the  pages  where  evidence,  testimony  and  exhibits  including 
those  in  the  body  of  any  pleading,  order  or  bill  of  exceptions  may  be 
found  and  briefly  naming  or  describing  each  exhibit  in  addition  to  its 
number  together  with  a  statement  of  the  numbers,  names  and  dates  of 
issue  of  any  patents,  shall  have  been  filed  in  this  court. 

4,  5  and  6,  same  as  corresponding  sections  in  1st  circuit  except  that  in 
section  4  it  omits  the  words  "circuit  and"  before  the  words  "district 
court." 

9th 
14.    WRITS  OF  ERROR,  APPEALS,  RETURN  AND  RECORD. 

1.  Same  as  section  1  for  the  1st  circuit,  with  the  insertion  of  the 
words  "opinion  or  opinions"  after  the  word  "record." 

2.  In  all  cases  brought  to  this  court  by  writ  of  error  or  appeal  to  re- 
view any  judgment  or  decree,  the  clerk  of  the  court  by  which  such  judg- 
ment or  decree  was  rendered  shall  annex  to  and  transmit  with  the  record 
the  original  writ  of  error  and  citation,  or  citation  issued  in  the  cause, 
and  a  certificate  under  seal  stating  in  detail  the  cost  of  the  record  and 
by  whom  paid. 


870  APPENDIX. 

3,  4  and  5  same  as  corresponding  sections  of  the  1st  circuit  except  that 
in  section  4,  it  omits  the  words  "circuit  and"  before  the  words  "district 
court,"  and  in  section  5  the  words  "at  San  Francisco,  California"  are 
inserted  after  the  word  "returnable."  (See  also  rules  16,  17,  23,  34,  35 
and  36  and  Rules  in  Admiralty.) 

RULE  15. 
1st       2d       5th       7th       9th 

15.    TRANSLATIONS. 

Whenever  any  record  transmitted  to  this  court  upon  a  writ  of  error  or 
appeal  shall  contain  any  document,  paper,  testimony  or  other  proceeding 
in  a  foreign  language,  and  the  record  does  not  also  contain  a  transla- 
tion of  such  document,  paper,  testimony  or  other  proceeding  made 
under  the  authority  of  the  inferior  court,  or  admitted  to  be  correct,  the 
record  shall  not  be  printed;  but  the  case  shall  be  reported  to  this  court 
by  the  clerk  and  the  court  will  thereupon  remand  it  back  to  the  inferior 
court,  in  order  that  a  translation  may  be  there  supplied  and  inserted  in 
the  record. 

The  above  is  rule  16  in  the  3d  circuit. 

3d 

15.    BAIL  IN  ERROR. 

1.  Where  a  writ  of  error  has  been  allowed  in  a  criminal  case,  the  jus- 
tice or  judge  who  allowed  the  writ,  or  any  judge  of  the  court  which 
entered  the  judgment  to  be  reviewed,  shall  have  power  to  admit  the 
plaintiff  in  error  to  bail  for  his  appearance  in  such  court  on  the  deter- 
mination of  the  proceedings  on  the  writ  of  error  to  abide  by  and  obey 
any  order  that  may  be  made  therein.  The  bond  or  recognizance  for 
such  appearance  shall  be  substantially  in  the  following  form: 


United  States  of  America,  ) 
District  of  ,  J 


S3. 


We  [here  insert  name  of  defendant],  residing  at  and  [here  insert  the 

name  of  surety],  residing  at in  the  state  of ,  acknowledge  ourselves 

to  be  jointly  and  severally  indebted  to  the  United  States  of  America  in  the 

sum  of  dollars,  lawful  money  of  the  United  States  of  America,  to  be 

levied  on  our  goods  and  chattels,  lands  and  tenements,  upon  this  condition: 

That  if  the  said ,  the  defendant,  upon  whose  application  a  writ  of  error 

has  been  allowed  by  the  United  States  circuit  court  of  appeals  for  the  third 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.     871 

circuit  and  is  now  pending,  shall  be  and  appear  at  the  district  court  of  the 

United  States  for  the  district  of  upon  the  determination  of  the 

proceedings  on  said  writ  of  error,  and  the  receipt  and  filing  of  a  mandate 
or  other  process  or  certificate  showing  the  disposition  thereof  by  the  said 
court  of  appeals,  or,  within  five  days  thereafter,  to  answer  and  obey  whatever 
final  order  or  judgment,  except  as  to  costs,  shall  be  made  in  the  premises,  and 
not  depart  said  court  without  leave  thereof,  then  thia  recognizance  to  be  void; 
otherwise,  to  remain  in  full  force  and  virtue. 

(L.  8.) 

• (L.    8.) 

(L.  8.) 

Taken,   acknowledged   and  subscribed,   this  day   of  A.   D. 

191 — ,  in  open  court. 

— ,  Clerk  of  District  Court. 

4th 

15.    TRANSLATIONS. 

Whenever  any  transcript  of  the  record  transmitted  to  this  court 
shall  contain  any  documents,  papers,  testimony  or  proceedings  in  a 
foreign  language,  and  the  transcript  does  not  also  contain  a  translation 
of  the  said  documents,  papers,  testimony  or  proceedings  made  under 
the  authority  of  the  lower  court,  or  admitted  to  be  correct,  the  tran- 
script of  the  record  may  be  returned  by  this  court  to  the  lower  court 
in  order  that  a  translation  may  there  be  supplied,  printed  and  certified 
to  this  court. 

6th 

In  the  sixth  circuit  no  provision  is  made  for  "Translations,"  and 
rule  15  is  as  follows: 

15.  RECORDS  AND  RETURNS  ON  WRITS  OF  ERROR  AND 

APPEALS. 

1.  All  appeals,  writs  of  error  and  citations  must  be  made  returnable 
not  exceeding  thirty  days  from  the  day  of  allowing  the  appeal  in  open 
court  or  signing  the  citation,  whether  the  return  fall  in  vacation  or  in 
term  time,  and  must  be  served  before  the  return  day. 

2.  The  clerk  of  the  district  court  shall  make  return  to  any  writ  of 
error  to,  or  appear-from,  that  court,  by  transmitting,  certified  under  his 
hand  and  the  seal  of  the  court,  a  transcript  of  the  record  in  the  district 
court,  prepared  as  directed  by  other  provisions  of  this  rule.    He  shall 
make  such  return  on  or  before  the  return  day,  unless  the  time  therefor 
be  extended  as  otherwise  provided  in  these  rules. 


872  APPENDIX. 

3.  In  all  appeals,  not  in  admiralty  (and  save  in  cases  under  general 
equity  rule  77),  the  transcript — the  contents  of  which  are  to  be  deter- 
mined pursuant  to  clauses  (a)  and  (c)  of  general  equity  rule  75  (Note  1) 
— shall  always  include:   (1)  the  statement  of  evidence;  (2)  the  clerk's 
certificate  showing  what  portions  are  included  by  request  of  each  party ; 
(3)   any  opinion  or  memorandum  filed  by  the  judge  pertaining  to  the 
matter  involved  in  the  appeal ;  (4)  the  pleadings  affecting  the  decree  or 
order  appealed  from,  and  such  order  or  decree;    (5)   all  proceedings 
relating  to  the  appeal  and  the  security  given  thereon,  together  with 
a  copy  of  the  citation,  if  one  there  was,  and  the  evidence  of  service; 
(6)  in  cases  removed  from  the  state  court,  the  full  transcript  on  re- 
moval; and  (7)  in  bankruptcy,  shall  also  contain  the  petition  for  adjudi- 
cation and  the  order  thereon.     It  shall  omit:   (1)  all  formal  proceed- 
ings to  bring  into  court  parties  wht>  afterwards  appear  generally,  unless 
such  proceedings  are  involved  in  the  desired  review;  and  (2)  all  motions 
or  petitions  filed  and  all  affidavits  in  connection  therewith,   and  all 
orders  made  and  proceedings  had  thereon,  unless  such  matters  are  in- 
volved in  the  desired  review.     It  shall  carry,  at  the  beginning  of  each 
paper,  the  name  thereof,  and  the  date  when  it  was  filed,  omitting  the 
title  of  the  court  and  the  cause  and  all  formal  indorsements   (Note  2). 
Orders  and  decrees  shall  carry  a  short,  descriptive  title  with  the  date 
and  entry  and  the  name  of  the  judge,  but  without  other  caption  (Note 
3).     Exhibits  or  documents  shall  not  be  duplicated,  but  a  cross-reference 
shall  be  made. 

4.  Upon  writ  of  error  from  this  court,  the  contents  of  the  transcript 
shall  be  determined  and  the  transcript  made  up  in  the  same  manner 
provided  by  clauses  (a)  and  (c)  of  general  equity  rule  75  and  clause  3 
of  this  rule,  both  applied  as  near  as  may  be  to  an  action  at  law.     Such 
transcript  shall  contain  also  a  copy  of  the  bill  of  exceptions,  the  assign- 
ments of  error  and  the  writ  of  error. 

5.  The  original  citation  with  proof  of  service  and  the  original  writ  of 
error  shall  be  filed  with  the  clerk  of  the  court  below  and  be  by  him 
transmitted  with  the  transcript  to  the  clerk  of  this  court. 

6.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of  the 
District  Judge,  that  original  papers  or  exhibits  of  any  kind  shall  be 
inspected  in  this  court  upon  review,  he  may  make  such  rule  or  order 
as  to  him  may  seem  proper  for  the  safekeeping,  transporting  and  return 
of  such  original  papers  and  exhibits;  and  this  court  will  receive  and 
consider  such  originals  in  connection  with  the  transcript. 

1  Equity  Rule  75,  see  Equity  Rules,  this  Appendix. 

2  e.  g.,  "Answer.     Filed  February  1,  1913." 

3  e.  g.,  "Final  Decree.     Entered  February  1,  1913,  by  Judge  ." 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      873 

7.  The  record,  in  cases  of  admiralty  and  maritime  jurisdiction  shall 
be  made  up  as  provided  in  General  Admiralty  Rule  52. 

8.  On  motion  duly  made,  or  on  its  own  motion,  this  court  will  order 
portions  to  be  stricken  from  the  transcript,  or  additions  to  be  made 
thereto  by  supplementary  return,  as  may  appear  proper. 

8th 
15.    TRANSLATIONS. 

Whenever  any  transcript  transmitted  to  this  court  upon  a  writ  of 
error  or  appeal  shall  contain  any  document,  paper,  testimony  or  other 
proceeding  in  a  foreign  language,  and  the  transcript  does  not  also  con- 
tain a  translation  of  such  document,  paper,  testimony  or  other  proceed- 
ing made  under  the  authority  of  the  inferior  court,  or  admitted  to  be 
correct,  the  transcript  shall  not  be  printed;  but  the  case  shall  be  re- 
ported to  this  court  by  the  clerk,  and  the  court  will  thereupon  remand 
it  back  to  the  inferior  court;-  and  if  the  record  is  to  be  printed  in  the 
court  below  it  shall  be  reported  to  that  court  by  its  clerk,  in  order  that 
a  translation  may  be  there  supplied  and  inserted  in  the  record. 

RULE  16. 
2cl       5th1        7th       8th        9th 

16.     DOCKETING  CASES. 

1.  It  shall  be  the  duty  of  the  plaintiff  in  error  or  appellant  to  docket 
the  case  and  file  the  record  ["and  docket  the  case,"  9th  circuit] 
thereof  with  the  clerk  of  this  court  ["at  San  Francisco,"  9th  circuit] 
by  or  before  the  return  day,  whether  in  vacation  or  in  term  time.  Rut 
for  good  cause  shown,  the  justice  or2  judge3  who  signed  the  citation, 
or  any  judge  of  this  court  may  enlarge  the  time4  by  or  before  its 
expiration,  the  order  of  enlargement  to  be  filed  with  the  clerk  of  this 
court.6  If  the  plaintiff  in  error  or  appellant  shall  fail  to  comply  with 
this  rule,  the  defendant  in  error  or  appellee  may  have  the  cause  dock- 
eted and  dismissed  upon  producing  a  certificate,  whether  in  term  time 
or  vacation,  from  the  clerk  of  the  court  wherein  the  judgment  or  decree 

1  In  5th  circuit  a  fourth  section  is  added  just  below, 
a  In  2d  circuit  added  "any  district." 

3  In  2d  circuit  substitute  for  the  words  "who  signed  the  citation,"  th.-so 
words,  "within  the  district." 

4  "Upon    four   days'   notice   served    before   its  application   on    the   attorney 
for  the  opposite  party,"  2d  circuit. 

5  From  this  note  number  on  the  balance  of  this  section  1  is  sectiou  2  in  the 
4th  circuit. 


874  APPENDIX. 

was  rendered,  stating  the  case  and  certifying  that  such  writ  of  error  or 
appeal  has  been  duly  sued  out  or  allowed.  And  in  no  case  shall  the 
plaintiff  in  error  or  appellant  be  entitled  to  docket  the  case  and  file  the 
record  after  the  same  shall  have  been  docketed  and  dismissed  under 
this  rule,  unless  by  order  of  this  court. 

2.  But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket 
the  case  and  file  a  copy  of  the  record  ["and  docket  the  case,"  9th  circuit] 
with  the  clerk  of  this  court,  and  if  the  case  is  docketed  and  a  copy  of 
the  record  filed  with  the  clerk  of  this  court  by  the  plaintiff  in  error  or 
appellant  within  the  period  of  time  above  limited  and  prescribed  by 
this  rule,  or  by  the  defendant  in  error  or  appellee  at  any  time  there- 
after, the  case  shall  stand  for  argument  at  the  term.8 

3.  [Except  9th  circuit  following.]     Upon  the  filing  of  the  transcript 
of  a  record  brought  up  by  writ  of  error  or  appeal,  the  appearance  of 
the  counsel  for  the  party  docketing  the  case  shall  be  entered.7 

3.  [9th  circuit.]     Upon  the  filing  of  the  transcript  of  a  record  brought 
up  "by  writ  of  error  or  appeal,  the  appearance  of  the  counsel  for  the 
party  docketing  the  case  shall,  if  said  counsel  be  qualified  under  the 
provisions  of  rule  7,  be  entered. 

4.  [In  5th  circuit  only.]     In  all  cases  the  plaintiff  in  error  or  appel- 
lant, on  docketing  a  case  and  filing  the  record,  shall  enter  into  an  under- 
taking to  the  clerk,  with  surety  to  his  satisfaction  for  the  payment  of 
his  fees,  or  otherwise  satisfy  him  in  that  behalf. 

1st 

16.    DOCKETING  AND  DISMISSING  CASES. 

1.  The  plaintiff  in  error  or  appellant  shall  docket  the  case,  and  file 
the  record  thereof,  on  or  before  the  return  day,  whether  in  vacation  or 
in  term  time.     But,  for  good  cause  shown,  the  justice  or  judge  who 
signed  the  citation,  or  any  circuit  or  district  judge,  may  enlarge  the 
time,  the  order  of  enlargement  to  be  filed  in  this  court. 

2.  If  the  plaintiff  in  error  or  appellant  shall  fail  to  comply  with  this 
rule,  the  defendant  in  error  or  appellee  may  have  the  case  docketed 
and  dismissed  whether  in  term  time  or  vacation  upon  producing  a  certifi- 
cate from  the  clerk  of  the  court  wherein  the  judgment  or  decree  was 
rendered,  stating  the  case,  the  return  day  of  citation,  and  that  the  writ 
of  error  or  appeal  was  duly  sued  out  or  allowed.     And  the  plaintiff 
in  error  or  appellant  shall  not  be  entitled  to  docket  the  case,  or  file 

6  For  "at  the  term"  substitute  "in  due  course"  in  7th  circuit. 

7  The  following  note  was  added  to  the  rule  for  the  8th  circuit': 

Note:  A  deposit  of  thirty-five  dollars  to  secure  clerk's  costs  is  required 
before  the  record  in  a  cause  is  filed  and  docketed^ 


BULBS  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      875 

the  record,  after  the  same  shall  have  been  docketed  or  dismissed  under 
this  rule,  unless  by.  the  order  of  the  court  after  notice  to  the  adverse 
party. 

But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket 
the  case  and  -file  the  record ;  and,  if  the  case  is  docketed  and  the  record 
filed  by  the  plaintiff  in  error  or  appellant  within  the  time  prescribed 
by  this  rule,  or  by  the  defendant  in  error  or  appellee  at  any  time  there- 
after, the  case  shall  stand  for  argument. 

3.  On  the  filing  of  the  record,  the  appearance  of  the  counsel  for 
the  party  docketing  the  case  shall  be  entered. 

3d 

Rule  16  of  1st  circuit  with  same  additions  is  rule  17  of  3d  circuit 
quoted  below  under  rule  17.  Rule  16  of  3d  circuit  is  the  same  as  rule 
15  of  the  other  circuits  above  dealing  with  "Translations." 

4th 
16.    DOCKETING  CASES. 

1.  Except  as  otherwise  provided  by  rule  23,  it  shall  be  the  duty  of  the 
appellant,  plaintiff  in  error,  or  petitioner  for  revision  in  bankruptcy 
to  cause  to  be  printed  and  suitably  indexed  the  transcript  of  the  record 
(as  well  as  any  addendum  to  the  record  required  by  such  party)  and 
to  deliver  the  same  to  the  clerk  or  deputy  clerk  of  the  court  below  for 
certification,  sealing  and  transmission  to  this  court  within  forty  days 
from  the  date  of  the  citation  or  the  filing  of  the  petition  for  revision ; 
and  also  on  or  before  the  expiration  of  the  said  forty  days  to  file  with 
the  clerk  of  this  court  at  least  twenty-four  printed  copies  of  the  said 
transcript  and  addendum  above-mentioned,  if  any.  He  shall  also  at 
the  same  time  furnish  to  the  adverse  party  at  least  three  copies  of  the 
printed  transcript  of  the  record,  including  any  addendum  thereto  printed 
at  his  instance.  It  shall  also  be  the  duty  of  appellant,  plaintiff  in  error, 
or  petitioner  for  revision  to  docket  the  cause  in  this  court  on  or  before 
the  return  day,  whether  in  term  time  or  vacation.  In  case  any  appellee 
or  defendant  in  error  shall  have  required  an  addendum  to  the  tran- 
script of  record,  it  shall  be  the  duty  of  such  party  to  file  in  the  office 
of  the  clerk  of  this  court,  on  or  before  the  said  return  day,  at  least 
twenty-four  printed  copies  of  such  addendum  as  well  as  one  additional 
copy  thereof,  which  shall  have  been  duly  certified  by  the  clerk  of  the 
court  below;  and  such  party  shall  at  the  same  time  furnish  to  the 
adverse  party  at  least  three  copies  of  said  printed  addendum. 


876  APPENDIX. 

The  time  within  which  any  of  the  acts  in  this  section  above  mentioned 
are  required  to  be  done  may  for  good  cause  shown  be  enlarged  by  the 
justice  or  judge  who  signed  the  citation  or  any  judge  of  this  court, 
provided  the  order  of  enlargement  be  made  prior  to  the  expiration  of 
such  time;  such  order  to  be  filed  with  the  clerk  of  this  court. 

2.  Is  that  part  of  §  1  (first  above  quoted  for  2d,  5th,  7th,  8th,  9th 
circuits)   following  the  note  number  5. 

3.  Is  §  2  first  above  quoted  for  2d,  5th,  7th,  8th,  9th  circuits. 

4.  Upon  the  filing  of  the  transcript  of  the  record  in  any  case  brought 
up  by  writ  of  error  or  appeal,  the  appearance  of  counsel  for  the  party 
docketing  the  cause  shall  be  entered  by  the  clerk  of  this  court  as  of 
course. 

5.  Defendants  in  error,  appellees,  or  respondents,  are  required,  at  the 
time  of  entering  their  appearance  by  attorney,  to  make  a  deposit  of  $25 
for  account  of  costs  to  be  incurred  by  them  in  this  court.     This  is  ap- 
plicable to  all  cases  except  when  the  United  States  is  defendant  in  error 
or  appellee. 

6th 
[The  rule  as  to  "docketing"  in  this  circuit  is  rule  18.] 

1«.  DEATH  OF  A  PAETY. 

1.  Whenever  a  party  to  a  case  pending  in  this  court  shall  die,  the 
personal  representative  may  suggest  the  death  upon  the  record,  filing 
evidence  of  his  representative  capacity,  and  designating  counsel,  and 
thereupon  the  case  shall  stand  as  revived  in  behalf  of  or  against  the 
interest  of  the  deceased  party,  and  the  cause  shall  proceed  as  in  other 
cases. 

2.  Where  a  party  to  a  case  pending  in  this  court  shall  die  and  his 
personal  representative  does  not,  within  sixty  days  after  such  death, 
appear  under  clause  1,  any  other  party  in  interest  may  suggest  such 
death  upon  the  record,  filing  evidence  of  the  due  appointment  of  a  per- 
sonal representative,  and  thereupon,  and  without  notice,  the  court  or 
any  judge  thereof  will  make  an  order  that  such  personal  representative 
appear  and  designate  counsel.     In  default  of  such  appearance,  within 
thirty  days  after  service  on  such  personal  representative  of  a  certified 
copy  of  such  order,  the  adverse  party,  on  proof  of  such  service  and  with- 
out further  notice,  may  have,  from  this  court,  an  order  either  to  revive 
the  cause  and  direct  that  it  proceed  as  to  the  interest  held  by  the  de- 
ceased party,  or  to  dismiss  the  case  as  to  such  interest,  as  may  be  by 
the  court  thought  proper. 


RULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      877 

3.  If  the  death  of  a  party  is  brought  to  the  attention  of  this  court, 
and  proceedings  are  not  taken  under  clause  1  or  clause  2  sufficiently 
to  dispose  of  the  resulting  situation,  the  court  will,  on  its  own  motion, 
direct  such  steps  to  be  taken  as  are  proper  to  dispose  of  the  case  or 
expedite  the  hearing. 

4.  Whenever  any  party  to  a  suit  pending  in  a  district  court  shall  die, 
and  because  of  such  death  and  because  of  the  absence  of  any  personal 
representative  of  the  deceased  within  the  jurisdiction  of  the  district 
court  and  any  means  of  compelling  the  appointment  of  such  a  repre- 
sentative within  such  jurisdiction  the  adverse  party  is  not  able  to  have 
the  case  revived  in  the  district  court  and  to  proceed  with  the  desired 
review  in  this  court,  the  adverse  party  desiring  a  review  may  proceed 
as  if  such   death  had  not  occurred,   and   may  have   supersedeas   as   in 
other  cases,  serving  all  required  papers  and  notices  upon  such  persons 
as,  in  the  judgment  of  the  district  court,  will  be  most  likely  to  give 
notice  to  all  persons  interested  in  the  estate,  and  as  may  be  directed 
by  the  district  court.     When  the  record  in  such  a  case  has  been  filed 
in  this  court,  the  same  proceedings  shall  be  had  as  specified  in  clauses 
2  and  3,  or  the  court  will  take  such  proceedings  as  may  seem  to  it 
advisable  to  bring  in  the  proper  parties. 

RULE  17. 
2d       6th       


DOCKET. 

The  clerk  shall  enter  upon  a  docket  all  cases  brought  to  and  pending 
in  the  court  in  their  proper  chronological  order,  and  such  docket  shall 
be  called  at  every  term,  or  adjourned  term;  and  if  a  case  is  called  for 
hearing  at  two  terms  successively,  and  upon  the  call  at  the  second  term 
neither  party  is  prepared  to  argue  it,  it  will  be  dismissed  nt  Hie  cost 
of  the  plaintiff  in  error  or  appellant,  unless  sufficient  cause  is  shown 
for  further  postponement. 

1st 

17.    DOCKET  AND  CALENDARS. 

1.  The  clerk  shall  enter  and  number  on  the  docket  all  cases  consecu- 
tively, in  their  proper  chronological  order. 

2.  He  shall  print  at  least  twenty  days  before  the  first  Tuesday  of 
October  and  of  January,  and  the  second  Tuesday  of  April,  a  calendar 
of  all  the  pending  cases,  arranged  by  districts  in  the  following  order: 
Maine,  New  Hampshire,  Rhode  Island,  Massachusetts. 


878  APPENDIX. 

3d 

In  the  third  circuit  the  rule  as  to  "Docket  and  Argument  Lists"  is 
rule  18,  post.  Rule  17  is  similar  to  rule  16  in  1st  circuit,  supra.  Rule 
17,  3d  circuit,  is  as  follows: 

17.    FILING  RECORDS,   DOCKETING   CASES    AND    ENTERING 

APPEARANCES. 

1.  The  plaintiff  in  error  or  appellant  shall  file  the  record  of  the  case 
and  cause  it  to  be  docketed  by  the  clerk  of  this  court  on  or  before 
the  return  day  of  the  citation,  whether  in  vacation  or  in  term  time; 
but  for  good  cause  shown  the  justice  or  judge  who  signed  the  citation, 
or  any  Circuit  or  District  Judge,  may  extend  the  return  day  thereof, 
the  order  for  extension  to  be  filed  with  the  clerk  of  this  court. 

2.  If  the  plaintiff  in  error  or  appellant  shall  fail  to  comply  with 
the  first  section  of  this  rule  the  defendant  in  error  or  appellee  may 
cause  the  case  to  be  docketed  without  the  filing  of  any  record  and  have 
it  dismissed,  whether  in  term  time  or  vacation,  upon  due  proof  of  notice 
to  the  plaintiff  in  error  or  appellant  of  a  motion  for  such  dismissal,  and 
upon  producing  a  certificate  from  the  clerk  of  the  court  wherein  the 
judgment  or  decree  was   rendered,   stating  the   case,   the  return   day 
of  the  citation,  and  that  the  writ  of  error  or  appeal  was  duly  sued  out 
or  allowed;  and  in  no  case  shall  the  plaintiff  in  error  or  appellant  be 
entitled  to  file  the  record  or  to  have  it  docketed  after  the  defendant 
in  error  or  appellee  shall  have  had  the  case  dismissed  under  this  section 
of  this  rule  unless  upon  special  order  of  the  court. 

3.  Instead  of  having  the  case  docketed  for  the  purpose  of  having 
it  dismissed  under  the  provisions  of  the  second  section  of  this  rule,  the 
defendant  in  error  or  appellee,  on  payment  of  the  usual  fees,  may 
file  the  record  and  cause  the  case  to  be  docketed  by  the  clerk,  and  if 
the  record  be  filed  and  the  case  docketed,  either  by  the  plaintiff  in  error 
or  appellant,  within  the  time  prescribed  by  the  first  section  of  this 
rule,  or  by  the  defendant  in  error  or  appellee  under  the  provisions  of 
this  section,  the  case  shall  stand  for  argument. 

4.  On  the  filing  of  the  record  the  appearance  of  the  counsel  for  the 
party  docketing  the  case  shall  be  entered,  and  on  or  before  the  return 
day  of  the  citation  the  counsel  for  the  appellee  or  defendant  in  error 
shall  also  enter  appearance  for  the  appellee  or  defendant  in  error. 

The  provisions  governing  the  docket  in  the  third  circuit  are  con- 
tained in  rule  18  below. 


fcULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPBALS. 

4th 

17.    DOCKET. 

1.  The  clerk  shall  enter  upon  a  docket  all  cases  brought  to  and  pend- 
ing in  the  court  in  their  proper  chronological  order. 

2.  All  cases  in  which  copies  of  the  printed  record  are  delivered  to 
the  adverse  party  or  his  counsel  at  least  twenty  days  before  any  regular 
term  or  adjourned  term  shall  stand  for  argument  at  the  term  holden 
next  after. the  docketing  of  the  case. 

3.  The  clerk  before  each  regular  term  shall  print  a  docket  containing 
all  pending  cases  and  such  docket  shall  be  called  at  every  term  or 
adjourned  term.     If  a  case  is  called  for  hearing  at  two  terms  suc- 
cessively, and  upon  the  call  at  the  second  term  neither  party  is  prepared 
to  argue  it,  it  will  be  dismissed  at  the  cost  of  the  plaintiff  in  error, 
appellant  or  petitioner  for  revision,  unless  sufficient  cause  is  shown 
for  further  postponement. 

4.  By  consent  of  counsel  in  writing  filed  with  the  clerk  of  this  court, 
any  cases  not  included  in  section  2  of  this  rule  may  be  by  the  clerk 
placed  at  the  foot  of  the  argument  docket  and  may  be  argued  at  any 
term  or  adjourned  term,  provided  the  briefs  on  both  sides  are  filed 
before  the  case  is  called. 

6th 

In  the  sixth  circuit  the  rule  as  to  "The  Docket — Docketing— Dismiss- 
ing'" is  rule  18. 

And  rule  17  is  as  follows  in  the  sixth  circuit: 

17.    PROCEEDINGS  IN  FORMA  PAUPERIS. 

1.  Applications  for  leave  to  proceed  in  this  court  pursuant  to  the  act 
of  July  20th,  1892,  as  amended  July  25th,  1910,  must  be  by  special 
motion  with  notice  under  rule  24.     If  made  before  return  is  filed  in  this 
court,  notice  shall  be  served  upon  the  adverse  counsel  in  the  district 
court.     The  showing  by  affidavit  must  be  sufficient  to  satisfy  this  court 
that  the  appellant  is  entitled  to  the  benefit  of  the  act. 

2.  If  appellant  was  plaintiff  or  complainant  below,  he  must,  with  his 
application  to  this  court,  make  it  appear  whether  or  not  any  other 
person — attorney,  counsel,  or  otherwise — is  beneficially  interested  in  the 
recovery  sought,  and,  if  so,  that  every  such  person  is,  because  of  his 
poverty,  unable  to  pay,  or  give  security  for,  the  costs  from  which  appel- 
lants seek  to  be  excused. 


880 

7th 

17.    DOCKET. 

The  clerk  shall  prepare  calendars  of  causes  for  the  regular  terms  of 
this  court,  to  be  held  on  the  first  Tuesday  of  October  in  each  year,  and 
for  each  adjourned  session;  placing  thereon  in  proper  chronological 
order  only  cases  in  which  the  record  having  been  printed,  briefs  upon 
both  sides  have  been  filed  seven  days  before  the  beginning  of  the  term 
or  session. 

8th 

17.    DOCKET. 

The  clerk  shall  enter  upon  a  docket  all  cases  brought  to  and  pending 
in  the  court  in  their  proper  chronological  order,  and  such  docket  shall 
be  called  at  every  term,  or  adjourned  term,  except  cases  from  the  dis- 
tricts of  Colorado,  Utah,  Wyoming  and  New  Mexico,  which  cases  shall 
only  be  called  at  the  September  term  unless  counsel  otherwise  stipulate 
as  provided  in  rule  3 ;  and  if  a  case  is  called  for  hearing  at  two  terms 
successively,  and  upon  the  call  at  the  second  term  neither  party  is  pre- 
pared to  argue  it,  it  will  be  dismissed  at  the  cost  of  -the  plaintiff  in 
error  or  appellant,  unless  sufficient  cause  is  shown  for  further  post- 
ponement. 

9th 

17.    DOCKET. 

The  clerk  shall,  upon  payment  to  him  by  the  appellant  or  plaintiff 
in  error  of  a  deposit  of  twenty-five  dollars  in  each  case,  file  the  record 
and  enter  upon  a  docket  all  cases  brought  to  and  pending  in  the  court 
in  their  proper  chronological  order. 

RULE  18. 
1st        2d  4th        5th  ';     7th        8th        9th 

18.    CERTIORARI. 

No  certiorari  for  diminution  of  the  record  will  be  hereafter  ["here- 
after" omitted  in  8th  circuit]  awarded  in  any  case,  unless  a  motion 
therefor  shall  be  made  in  writing,  and  the  facts  on  which  the  same  is 
founded  shall,  if  not  admitted  by  the  other  party,  be  verified  by  affi- 
davit. And  all  motions  ["any  motion,"  7th  circuit]  for  such  certio- 
rari must  be  made  at  the  first  term  of  the  entry  of  the  case;  otherwise, 
the  same  will  not  be  granted,  unless  upon  special  cause  shown  to  the 
court,  accounting  satisfactorily  for  the  delay. 


BULKS  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS. 

94 

[Rule  as  to  "Certiorari"  is  numbered  20  in  3d  circuit.] 

18.    DOCKET  AND  ARGUMENT  LISTS. 

1.  Upon  the  filing  of  the  record  in  any  case  by  the  plaintiff  in  error 
or  appellant  and  the  payment  by  him  of  a  deposit  fee  of  $40.00,  the 
clerk  shall  enter  the  case,  the  record  of  which  is  so  filed,  upon  the 
docket  of  this  court;  such  docket  shall  have  all  its  cases  arranged  in 
their  proper  chronological  order. 

2.  The  clerk  shall  prepare  and  cause  to  be  printed  previous  to  the 
opening  of  each  term  of  this  court,  an  argument  list  of  all  cases  the 
records  of  which  shall  have  been  filed  with  him  not  less  than  fifteen 
days  before  the  opening  of  the  term,  which  cases  shall  be  put  on  the 
argument  list  in  the  chronological  order  of  docketing  the  same,  subject, 
however,  to  the  following  system  of  grouping:  the  first  group  shall  be 
composed  of  the  cases  in  which  all  the  circuit  judges  shall  be  compe- 
tent to  sit ;  the  second  of  the  cases  in  which  all  the  circuit  judges  except 
the  youngest  in  commission  shall  be  competent  to  sit;  the  third,  of  the 
cases  in  which  all  the  circuit  judges  except  the  next  to  the  youngest 
in  commission  shall  be  competent  to  sit,  and  the  fourth,  of  the  cases 
in  which  all  the  circuit  judges  except  the  oldest  judge  in  commission 
shall  be  competent  to  sit. 

6th 
[There  is  no  rule  as  to  "Certiorari,"  in  6th  circuit.] 

18.    THE  DOCKET— DOCKETING— DISMISSING. 
[In  the  other  circuits  this  subject  matter  is  treated  in  rules  16  and  17.] 

1.  The  clerk  shall  enter  upon  the  docket  in  their  proper  chronological 
order  all  cases  brought  to  or  in  this  court. 

2.  The  appellant  shall   docket  the  case  and  file  the  record  thereof 
with  the  clerk  of  this  court  by  or  before  the  return  day,  whether  in 
vacation  or  in  term  time,  and  at  the  time  of  filing  the  record,  the  appel- 
lant shall  deposit  with  the  clerk  the  sum  of  thirty-five  dollars  as  secur- 
ity for  costs,  except  in  cases  in  which  the  proper  showing  is  made  and 
an  order  of  this  court  is  entered  thereon  allowing  the  cause  to  proceed 
in  forma  pauperis,  and  except  in  the  cases  where,  by  statute,  advance 
payment  of  costs  is  not  required.     For  good  cause  shown,  the  justice 
or  judge  who  signed  the  citation,  or  any  judge  of  this  court,  may 
enlarge  the  time  for  return  at  or  before  its  expiration,  the  order  of 
enlargement  to  be  returned  with  the  record  and  filed  with  the  clerk  of 

Manual — 56 


882  APPENDIX. 

this  court.  If  the  appellant  fail  to  comply  with  this  rule,  the  appellee 
may  have  the  cause  docketed  and  dismissed,  upon  producing  a  certifi- 
cate from  the  clerk  of  the  court  wherein  the  said  judgment  or  decree 
was  rendered,  stating  the  case  and  certifying  that  such  writ  of  error 
or  appeal  has  been  duly  sued  out  or  allowed.  In  no  case  shall  the 
appellant  be  entitled  to  docket  the  case  and  file  the  record  after  the 
same  shall  have  been  docketed  and  dismissed  under  this  rule,  unless 
by  order  of  the  court. 

3.  The  appellee  may,  at  his  option,  docket  the  case  and  file  a  copy 
of  the  record  with  the  clerk  of  this  court;  and  if  the  case  is  docketed 
and  a  copy  of   the  record  filed  with    the    clerk  of   this    court  by  the 
appellant  within  the  period  of  time  above  limited  and  prescribed  by 
this  rule,  or  by  the  appellee  at  any  time  thereafter,  the  case  shall  stand 
for  argument. 

4.  The  appearance  of  the  counsel  docketing  the  case  shall  thereupon 
be  entered  upon  the  docket. 

5.  All  subsequent  papers   filed,   orders   made   and   proceedings   had, 
shall  be  noted  upon  the  docket. 

6.  Whenever  counsel  for  appellant  and  appellee  shall,  in  vacation, 
sign  and  file  with  the  clerk  an  agreement  in  writing  directing  the  case 
to  be  dismissed  and  specifying  the  terms  as  costs,  on  which  terms  it 
is  to  be  dismissed,  and  shall  pay  to  the  clerk  any  fees  due,  he  shall 
enter  the  case  on  his  docket  as  dismissed  and  give  to  either  party  re- 
questing it  a  copy  of  the  agreement  filed;  but  no  mandate  or  other 
process  on  such  dismissal  shall  be  issued  without  the  order  of  the  court. 

RULE  19. 

1st        2d  4th        5th  7th        8th        9th 

19.    DEATH  OF  A  PARTY. 

[This  subject  matter  is  under  rule  21  in  the  3d  circuit  and  rule  16 
in  the  6th  circuit.] 

1.  Whenever,  pending  a  writ  of  error  or  appeal  in  this  court,  either 
party  shall  die,  the  proper  representatives  in  the  personalty  or  realty  of 
the  deceased  party,  according  to  the  nature  of  the  case,  may  voluntarily 
come  in  and  be  admitted  parties  to  the  suit,  and  thereupon  the  case 
shall  be  heard  and  determined  as  in  other  cases;  and,  if  such  repre- 
sentatives shall  not  voluntarily  become  parties,  then  the  other  party 
may  suggest  the  death  on  the  record,  and  thereupon,  on  motion,  obtain 
an  order  that,  unless  such  representatives  shall  become  parties  within 
sixty  days,  the  party  moving  for  such  order,  if  defendant  in  error  ["or 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      883 

appellee,"  4th  circuit],  shall  be  entitled  to  have  the  writ  of  error  or 
appeal  dismissed,  and,  if  the  party  so  moving  shall  be  plaintiff  in  error 
["or  appellant,"  4th  circuit],  he  shall  be  entitled  to  open  the  record, 
and,  on  hearing,  have  the  judgment  or  decree  reversed,  if  it  be  erroneous: 
Provided,  however,  That  a  copy  of  every  such  order  shall  be  person- 
ally served  on  said  representatives  at  least  thirty  days  before  the  ex- 
piration of  such  sixty  days. 

2.  When  the  death  of  a  party  is  suggested,  and  the  representatives 
of  the  deceased  do  not  appear  within  ten  days  after  the  expiration  of 
such  sixty  days,  and  no  measures  are  ["shall  have  been,"  7th  circuit] 
taken  by  the  opposite  party  within  that  time  to  compel  their  ap]>ear- 
ance,  the  case  ["writ  of  error  or  appeal,"  7th  circuit]  shall  abate. 

3.  When  either  party  to  a  suit  in  a  circuit  or1  district  court  of  the 
United  States  shall  desire  to  prosecute  a  writ  of  error  or  appeal  to 
this  court  from  any  final  judgment  or  decree  rendered  in  the  circuit 
or1  district  court,  and,  at  the  time  of  suing  out  such  writ  of  error  or 
appeal,  the  other  party  to  the  suit  shall  be  dead  and  have  no  proper 
representative  within  the  jurisdiction  of  the  court  which  rendered  such 
final  judgment  or  decree,  so  that  the  suit  cannot  be  revived  in  that 
court,  but  shall  have  a  proper  representative  in  some  state  or  territory 
of  the  United  States,  or  in  the  District  of  Columbia,  the  party  desiring 
such  writ  of  error  or  appeal  may  procure  the  same,  and  may  have  pro- 
ceedings on  such  judgment  or  decree  superseded  or  stayed  in  the  same 
manner  as  is  now  allowed  by  law  in  other  cases,  and  shall  thereupon 
proceed  with  such  writ  of  error  or  appeal  as  in  other  cases.    And.  within 
thirty  days  after  the  filing  of  the  record  in  this  court  the  plaintiff  in 
error  or  appellant  shall  make  a  suggestion  to  the  court,  supported  by 
affidavit,  that  the  said  party  was  dead  when  the  writ  of  error  or  appeal 
was  taken  or  sued  out,  and  had  no  proper  representative  within  the 
jurisdiction  of  the  court  which  rendered  such  judgment  or  decree,  so 
that  the  suit  could  not  be  revived  in  that  court,  and  that  said  party 
had  a  proper  representative  in  some  state  or  territory  of  the  Ui.ited 
States,  or  in  the  District  of  Columbia,  and  stating  therein  the  name 
and  character  of  such  representative,  and  the  state  or  territory  or  dis- 
trict in  which  such  representative  resides;  and,  upon  such  suggestion 
he  may,  on  motion,  obtain  an  order  that,  unless  such  representative 
shall  make  himself  a  party  within  ninety  days,  the  plaintiff  in  error 
or  appellant  shall  be  entitled  to  open  the  record,  and  on  hearing  have 
the  judgment  or  decree  reversed,  if  the  same  be  erroneous:  Provided, 
however,  that  a  proper  citation,  reciting  the  substance  of  such  order, 
shall  be  served  upon  such  representative  either  personally,  or  by  being 

1  "Circuit  or"  omitted  in  8th  and  9th  circuits. 


884  APPENDIX. 

left  at  his  residence,  at  least  thirty  days  before  the  expiration  of  such 
ninety  days :  Provided,  also,  that  in  every  such  case,  if  the  representa- 
tive of  the  deceased  party  docs  not  appear  within  ten  days  after  the 
expiration  of  such  ninety  days  and  the  measures  above  provided  to 
compel  the  appearance  of  such  representative  have  not  been  taken  within 
the  time  as  above  required,  by  the  opposite  party,  the  case  shall  abate: 
And  provided,  also,  that  the  said  representative  may  at  any  time  before 
or  after  said  suggestion  come  in  and  be  made  a  party  to  the  suit  and 
thereupon  the  case  ["suit,"  5th  circuit]  shall  proceed,  and  be  heard  and 
determined  as  in  other  cases.  [A  note  in  7th  circuit  reads,  "See  §  9, 
Act.  Mch.  3,  1875,  Sup.  Rev.  Stats.,  p.  177."] 

3d 

In  the  third  circuit  the  above  is  rule  21,  and  rule  19  is  as  follows : 

19.    ARGUMENTS,  CONTINUANCES,  AND  DISMISSALS. 
[See  rule  25  in  other  circuits,  and  rule  23  in  6th  circuit.] 

1.  The  cases  in  the  argument  list  shall  be  called  for  argument  at  each 
term,  or  adjourned  term,  and  cases  shall  be  argued  on  call  unless  the 
court  shall  for  good  cause  otherwise  order. 

2.  If  the  defendant  in  error  or  appellee  fails  to  appear  when  his 
case  is  called  for  argument,  the  court  may  proceed  to  hear  the  argument 
on  the  part  of  the  plaintiff  in  error  or  appellant  and  to  give  judgment 
according  to  the  right  of  the  case. 

3.  For  good  cause  shown  the  court  may  order  the  continuance  of  any 
case  for  the  term. 

4.  When  a  case  is  reached  in  the  regular  call,  and  there  is  no  appear- 
ance for  either  party,  it  may  be  dismissed  at  the  cost  of  the  plaintiff 
in  error  or  appellant. 

5.  Where  no  counsel  appears  for  the  plaintiff  in  error  or  appellant, 
and  no  brief  has  been  filed  for  him,  the  defendant  in  error  or  appellee 
may  have  the  writ  of  error  or  appeal  dismissed  at  the  cost  of  the  de- 
faulting party. 

6.  If  a  case  is  called  for  argument  at  two  terms  successively,  and 
upon  the  call  at  the  second  term  neither  party  is  prepared  to  argue 
it,  it  will  be  dismissed  at  the  cost  of  the  plaintiff  in  error  or  appellant 
unless  a  sufficient  cause  is  shown  for  further  postponement. 

7.  Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending 
in  the  court,  or  the  appellant  and  appellee  in  an  appeal,  shall,  by  their 
attorneys  of  record,  sign  and  file  with  the  clerk  an  agreement  in  writ- 
ing directing  the  case  to  be   dismissed,   and  specifying  the  terms  on 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      885 

P 

;  which  it  is  to  be*  dismissed,  as  to  costs,  and  shall  pay  to  the  clerk  any 
fees  that  may  be  due  to  him,  it  shall  be  the  duty  of  the  clerk  to  enter 
the  case  dismissed,  and  to  give  to  either  party  requesting  it  a  copy  of 
the  agreement  filed ;  but  no  mandate  or  other  process  shall  issue  with- 
out an  order  of  the  court. 

8.  Cases  may  also  be  dismissed  in  accordance  with  the  second  section 
of  rule  17,  the  first  section  of  rule  23,  and  the  fourth  section  of  rule 
24  of  this  court. 

9.  Except  as  in  the  preceding  sections  of  this  rule  it  is  otherwise 
provided,  no  motion  to  dismiss  a  writ  of  error  or  an  appeal  will  be 
heard  unless  previous  notice  of  the  motion  has  been  given  to  the  plain- 
tiff in  error  or  appellant  or  his  counsel. 

6th 

19.    PRINTING  RECORDS. 
[See  rule  23  in  other  circuits.] 

1.  In  cases  where  the  record  is  printed  by  the  appellant  under  act 
of  February  13,  1911,  he  shall  file  with  the  clerk  twenty-five  printed 
copies  thereof  within  the  time  as  limited  or  extended  for  making  return 
to  writ  of  error  or  appeal.     The  clerk  shall  examine  the  printed  records 
so  offered  to  ascertain  whether  the  transcript  complies  with  rule  15, 

'and  also,  whether  the  printed  records  comply  with  the  statute  and  are 
properly  indexed.  If,  in  his  judgment,  they  are  insufficient  in  any- 
particular,  he  shall  bring  the  matter  to  the  attention  of  the  court,  which 
will  thereupon  make  such  order  as  to  it  may  seem  proper  for  corrected 
or  supplementary  return  and  printed  records.  As  soon  as  the  printed 
records  are  approved  as  filed  or  perfected  as  ordered,  the  clerk  shall 
deliver  one  copy  to  each  counsel  or  group  of  counsel  representing  a 
separate  interest,  and  shall  continue  such  distribution  as  counsel  subse- 
quently appear. 

2.  The  clerk  shall,  from  time  to  time  and  as  directed  by  the  senior 
circuit  judge,  receive  proposals  for  printing  such  records  as  arc  to  be 
printed  by  the  clerk,  which  proposals  shall  be  submitted  to  such  judirc, 
who  will,  in  his  discretion,  award  such  printing  to  the  most  satisfactory 
bidder;  and  the  same  shall  be  done,  during  the  period  of  such  award, 
by  the  person  to  whom  it  is  made. 

3.  In  cases  where  appellant  is  not  proceeding  under  such  statute,  the 
clerk  shall  at  once,  upon  the  docketing  of  the  case,  cause  an  estimate 
to  be  made  of  the  cost  of  printing  the  record,  including  his  supervising 
fee  as  provided  in  the  table  of  costs  following  rule  27,  and  notify  coun- 
sel for  appellant  of  the  estimated  amount,  which  shall  be  paid  to  the 


886  APPENDIX. 

clerk  within  ten  days  after  such  notice.  If  not  so  paid,  the  case  may 
be  dismissed  upon  motion  or  by  the  court  upon  its  own  motion.  Supple- 
mental estimates  and  payments  thereof  shall  be  made,  if  necessary;  any 
excess  payment  shall  be  refunded,  when  the  printing  is  finished.  When 
the  record  was  printed  upon  a  former  review  of  the  same  case,  and 
enough  old  records  to  be  reasonably  sufficient  for  use  upon  the  hearing 
are  on  file  or  available,  the  use  of  such  old  records,  in  lieu  of  printing, 
will  be  permitted,  upon  the  order  of  the  presiding  judge,  and  to  the 
extent  specified  in  such  order. 

4.  At  once,  upon  the  payment  of  such  estimate,  the  clerk  shall  cause 
twenty-five  copies  of  the  record  to  be  printed  forthwith,  shall  file  the 
same  and  shall  distribute  three  copies  of  the  same  to  counsel  for  each 
separate  adverse  interest  then  or  thereafter  appearing.     Before  print- 
ing, he  shall  examine  the  transcript  to  ascertain  whether  it  complies 
with  rule  15,  and  if,  in  his  judgment,  it  omits  anything  required  by  that 
rule,  he  shall  submit  the  matter  to  the  court,  which  will  make  such  order 
as  to  it  may  seem  proper  regarding  a  corrected  or  supplementary  return ; 
and  the  printing  shall  be  delayed  until  the  filing  of  any  further  return 
so  ordered.     In  printing,  the  clerk  shall  omit  any  matters  contained  in 
the  transcript  which,  by  rule  15,  are  required  to  be  omitted.     If  the 
appellant  shall  in  writing  and  before  the  record  is  printed,  request  the 
clerk  so  to  do,  he  shall  print  fifty  copies  instead  of  twenty-five.     If  the 
appellee  shall  request  such  additional  copies  to  be  printed,  the  clerk 
shall  comply  with  such  request,  if  the  appellee,  upon  demand,  advances 
to  him  the  estimated  cost  of  printing  the  additional  twenty-five  copies. 
If,  later,  a  review  in  the  Supreme  Court  is  sought,  the  clerk  shall  deliver 
such  twenty-five  copies  to  the  party  seeking  a  review;  but  if  such  addi- 
tional records  are  wanted  by  the  party  who  did  not  pay  for  the  print- 
ing thereof,  the  clerk  shall  require  payment  to  him  of  the  actual  cost  of 
such  additional  printing  and  shall  refund  the  same  to  the  party  who  had 
paid  therefor. 

5.  Where  the  record  is  printed  by  the  appellant,  he  shall  file  there- 
with proof  by  affidavit  of  the  actual  cost  of  such  printing,  including  the 
amounts  paid  to  the  clerk  in  the  district  court  for  the  transcript.     The 
amounts  paid  to  the  clerk 'of  the  district  court  for  the  manuscript  tran- 
script and  to  the  clerk  of  this  court  for  printing  and  for  his  fees  in 
connection  therewith,  or  the  amounts  so  shown  to  have  been  paid  below 
by  appellant  (not  exceeding,  for  printing,  the  amount  which  printing 
and  supervision  by  the  clerk  of  this  court  would  have  cost)  shall  form 
a  part  of  the  costs  of  the  cause  in  this  court  and  shall  be  taxed  against 
the  party  against  whom  the  costs  are  given  and  shall  be  inserted  in  the 
mandate  or  other  proper  process, 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  Of  APPEALS.      887 

RULE  20. 
Irt       2d       5th       9th 

20.    DISMISSING  CASES. 

["DISMISSING  CASES  BY  AGREEMENT,"  1st  Circuit.] 
Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending  in 
this  court,  or  the  appellant  and  appellee  in  an  appeal,  shall,  by  their 
attorneys  of  record,  sign  and  file  with  the  clerk  an  agreement  in  writ  in- 
direct ing  the  case  to  be  dismissed,  and  specifying  the  terms  on  which  it 
is  to  be  dismissed,  as  to  costs,  and  shall  pay  to  the  clerk  any  fees  that 
may  be  due  to  him,  it  shall  be  the  duty  of  the  clerk  to  enter  the  case 
dismissed,  and  to  give  to  either  party  requesting  it  a  copy  of  the  agree- 
ment filed ;  but  no  mandate  or  other  process  shall  issue  without  an  order 
of  the  court. 

3d 

Same  as  rule  18,  "Certiorari,"  for  all  other  circuits  except  6th, 

4th 

In   the  fourth   circuit   the  following  is  added  to  the   above:   "No 
attorney's  docket  fee  shall  be  taxed  in  a  case  dismissed  under  this  rule." 

6th 

20.    BRIEFS. 
[See  rule  24  in  other  circuits.] 

1.  Counsel  for  appellant,  within  twenty-five  days  after  the  filing  of 
the  printed  copies  of  the  record,  shall  file  with  the  clerk  twenty  priiited 
copies  of  a  brief. 

2.  This  brief  shall  contain,  in  order  here  stated: 

(1)  A  concise  abstract  or  statement  of  the  case,  presenting  succinctly 
the  questions  involved,  and  the  manner  in  which  they  are  raised ; 

(2)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the 
points  of  law  or  fact  to  be  discussed,  with  a  reference  to  the  pages  of 
the  record,  and  the  authorities  relied  upon  in  support  of  each  point. 
When  a  statute  of  a  state  is  cited,  so  much  thereof  as  may  be  deemed 
necessary  to  the  decision  of  the  case  shall  be  printed  at  length. 

3.  Within  thirty  days  after  service  of  appellant's  brief,  counsel  for 
appellee  shall  file  with  the  clerk  twenty  printed  copies  of  his  brief, 
which  shall  be  of  like  character  to  that  required  of  appellant, 

that  no  statement  of  the  case  shall  be  required. 


888  ,  APPENDIX. 

4.  Subsequent  briefs  may  be  filed  by  either  party;  by  the  appellant, 
not  less  than  twenty  days,  and  by  the  appellee,  not  less  than  ten  days, 
before  the  case  is  put  on  the  call  for  argument.     Later  briefs  will  not  be 
received  by  the  clerk  or  by  the  court,  without  permission  of  the  court 
or  one  of  the  judges  thereof. 

5.  Every  brief  of  more  than  twenty  pages  shall  contain  on  its  front 
fly  leaves,  a  subject  index  with  page  references,  the  subject  index  to  bo 
supplemented  by  a  list  of  all  cases  referred  to  alphabetically  arranged 
together  with  references  to  the  pages  of  the  brief  where  the  cases  are 
cited. 

6.  At  or  before  the  time  of  filing  any  brief,  two  copies  thereof  shall 
be  served  upon  each  adverse  counsel  who  has  appeared  in  this  court,  and 
if  there  has  been  no  appearance  here  for  appellee,  then  upon  his  counsel 
in  the  court  below;  and  the  clerk  shall  require  proof  or  acknowledgment 
of  such  services  to  be  filed  with  the  brief. 

7.  When  an  appellant  is  in  default  under  clause  1  of  this  rule,  the 
case  may  be  dismissed  on  motion,  or  further  time  may  be  granted;  when 
an  appellee  is  in  default  under  clause  3  of  this  rule,  the  appellant  may 
bring  such  default  to  the  attention  of  the  court  by  a  motion  for  a  sum- 
mary judgment  of  reversal,  and  thereupon  the  court  will  entertain  such 
motion,  or  grant  further  time,  as  may  seem  proper;   at  the  hearing  a 
party  who  has  not  filed  a  brief,  as  required  by  this  rule,  will  not  be 
heard  orally,  unless  the  court  shall  so  request. 

7th 

20.  DISMISSING  CASES. 

Whenever  the  parties  to  a  writ  of  error  or  an  appeal  shall,  by  their 
attorneys  of  record,  sign'and  file  with  the  clerk  an  agreement  in  writing 
directing  the  case  to  be  dismissed,  and  specifying  the  terms  on  which  it 
is  to  be  dismissed,  in  respect  to  costs,  and  shall  pay  to  the  clerk  any 
fees  that  may  be  due  to  him,  the  clerk  shall  enter  the  case  dismissed  and 
shall  give  to  either  party  requesting  it  a  copy  of  the  agreement  filed, 
but  no  mandate  or  other  process  shall  issue  without  an  order  of  the 
court. 

8th 

20. 'DISMISSING  CASES. 

Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending  in 
this  court  or  the  appellant  and  appellee  in  an  appeal,  shall,  by  their 
attorneys  of  record,  sign  and  file  with  the  clerk  an  agreement  in  writing 
directing  the  case  to  be  dismissed,  and  specifying  the  terms  on  which  it 
is  to  be  dismissed,  as  to  costs,  and  shall  pay  to  the  clerk  any  fees  that 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      889 

may  be  due  to  him,  it  shall  be  the  duty  of  the  clerk  seasonably  to  pre- 
sent such  agreement  to  the  court  for  its  consideration  and  determination. 


RULE  21. 
2d  4th        5th  7th        8th        9th 

21.    MOTIONS. 

1.  [Except  in  9th,  which  follows  3  below.]     All  motions  to  the  court 
shall  be  reduced  to  writing,  and  shall  contain  a  brief  statement  of  the 
facts  and  objects  of  the  motion. 

2.  One  ["half,"  2d,  7th  and  9th  circuits]  hour  on  each  side  shall  be 
allowed  to  the  argument  of  a  motion,  and  no  more,  without  special  leave 
of  the  court,  granted  before  the  argument  begins. 

3.  No  motion  to  dismiss,  except  on  special  assignment  by  the.  court, 
shall  be  heard,  unless  previous  notice  ["as  above,"  9th  circuit]  has  been 
given  to  the  adverse  party,  or  the  counsel  or  attorney  of  such  party. 

1  in  the  9th  circuit  is  as  follows: 

1.  All  motions  to  the  court  shall  be  reduced  to  writing*  shall  contain 
a  brief  statement  of  the  facts  and  objects  of  the  motion  and  shall  be 
served  upon  opposing  counsel  at  least  five  days  before  the  day  noticed 
for  the  hearing. 

•When  typewritten,  an  original  and  three  copies  must  be  filed. 

1st 

2L    MOTIONS. 

1.  The  motion  day  shall  be  the  first  Tuesday  of  every  stated  session 
of  the  court,  and  any  other  Tuesday  while  the  court  shall  remain  in 
session. 

2.  Same  as  subdivision  1  in  the  other  circuits  above. 

3.  All  motions  to  dismiss  writs  of  error  or  appeals  (except  motions  to 
docket  and  dismiss  under  rule  16)  or  to  advance  cases,  or  for  a  writ  of 
certiorari,  and  other  special  motions,   shall   be  printed,  and  be  accom- 
panied by  printed  briefs. 

4.  No  motion  to  dismiss  except  on  special  assignment  by  the  court, 
shall  be  heard,  unless  previous  notice  has  been  given  to  the  adverse 
party  or  his  counsel. 

5.  Any  motion,  of  which  counsel  shall  have  given  notice  to  the  clerk 
in  advance,  shall  be  entered  on  the  clerk's  list  in  the  order  in  which  hr 
receives  notice  thereof,  and  shall  have  priority  in  that  order  before  other 
motions,  unless  otherwise  specially  ordered  by  the  court. 


890  APPENDIX. 

6.  Half  an  hour  on  each  side  shall  be  allowed  to  the  argument  of  a 
motion  and  no  more,  without  special  leave  of  the  court  granted  before 
the  argument  begins. 

3d 

Rule  21  in  the  3d  circuit,  "Death  of  a  Party,"  is  the  same  as  rule  19 
for  the  1st  circuit,  except  that  it  omits  the  words  "circuit  or"  before  the 
words  "district  court"  wherever  they  occur  in  §  3.  The  rule  as  to 
"Motions"  is  rule  22,  3d  circuit. 

6th 
21.    FORM  OF  PLEADINGS,  RECORDS  AND  BRIEFS. 

1.  Records  printed  by  the  clerk  shall  be  of  a  uniform  size,  printed  in 
small  pica  type,  24  pica  ems  to  a  line,  48  lines  to  a  page,  solid,  with 
index  and  suitable  cover,  containing  the  title  of  the  court  and  cause,  the 
court  from  which  the  case  is  brought  to  this  court  and  the  number  of 
the  case;  size  of  pages  to  be  9V2X(5^  inches,  except  that  in  patent  cases 
the  size  of  the  page  will  be  10%x7%  inches, — that  is  to  say,  large  enough 
to  bind  in  copies  of  patent  office  drawings  and  specifications  without 
folding. 

The  type  shall  be  of  a  clear,  strong  face,  substantially  equivalent  to 
that  in  which  this  rule  is  printed  and  the  paper  shall  be  wholly  unglazed. 
Each  page  shall  carry  as  a  running  head  in  addition  to  the  48  lines,  the 
name  of  the  paper  or  of  the  witness  testifying,  as  found  on  that  page. 
Each  pleading,  order,  exhibit  or  other  paper  shall  be  separated  from  the 
preceding  matter  by  a  2-inch  space  and  shall  be  headed  by  its  title,  in 
black-faced  capitals,  and  its  filing  date  (e.  g.,  "Answer — Filed  February 
15th,  1913").  The  full  title  of  the  court  and  cause  below  shall  be  given 
on  the  title  page ;  elsewhere,  both  shall  be  omitted. 

2.  Printed  arguments  and  briefs  of  attorneys  shall  conform  as  far  as 
practicable  to  the  size  and  style  of  the  printed  record  but  shall  contain 
about  36  lines  to  the  page  and  be  leaded  with  at  least  two-point  leads. 
Provisions  governing  motions  and  hearings  thereon  in  the  6th  circuit 
are  contained  in  rule  24  for  that  circuit. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      891 

RULE  22. 
2d  5th          —       8th       9th 

22.    PARTIES  NOT  READY. 

1.  Where  no  counsel  appears,  and  no  brief  has  been  filed  for  the  plain- 
tiff in  error  or  appellant,  when  the  case  is  called   ["has  been  called  for 
trial"  5th  circuit]  the  defendant  may  have  the  plaintiff1  called  and  the 
writ  of  error  or  appeal  dismissed. 

2.  Where  the  defendant 2  fails  to  appear  when  the  case  is  called  for 
trial,  the  court  may  proceed  to  hear  an  argument  on  the  part  of  the 
plaintiff,1  and  to  give  judgment  according  to  the  right  of  the  case. 

3.  When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  there 
is  no  appearance  for  either  party,  the  case  shall  be  dismissed  at  the 
cost  of  the  plaintiff.1 

1  In  8th  circuit,  reads  "plaintiff  in  error  or  appellant." 

2  In  8th  circuit,  reads  "defendant  in  error  or  appellee." 

6th 
22.  CALL  AND  ORDER  OF  THE  CALENDAR. 

1.  On  the  first  Tuesday  of  October  and  of  January,  and  on  the  second 
Tuesday  of  April,  the  court,  except  as  may,  from  time  to  time,  be  other- 
wise ordered,  will  commence  calling  cases  for  argument  in  the  order  in 
which  they  stand  on  the  calendar,  and  proceed  from  day  to  day  during 
the  session  in  the  same  order ;  but  no  case  from  the  district  of  Massachu- 
setts shall  be  called  before  the  second  Tuesday  of  the  session. 

2.  Same  as  subdivision  1  of  the-  other  circuits  above. 

3.  Same  as  subdivision  2  of  the  other  circuits  above. 

4.  Same  as  subdivision  3  of  the  other  circuits  above  except  substitute 
"calendar"  for  "docket,"  "may"  for  "shall"  before  "be  dismissed." 

5.  If  either  of  the  parties  is  ready  when  the  case  is  called,  the  samo 
may  be  heard ;  and,  if  neither  party  is  ready,  the  case  may  be  dismissed, 
or  be  postponed  to  the  next  session,  as  the  court  may  order. 

6.  If  a  case  is  called  for  hearing  at  two  stated  sessions  successively 
and,  on  the  call  at  the  second  session,  neither  party  is  prepared  to  argue 
it,  it  will  be  dismissed  at  the  cost  of  the  plaintiff  in  error  or  appellant, 
unless  sufficient  cause  is  shown  for  further  postponement. 

7.  The  court  will  not  hear  arguments  on  Mondays  or  Saturdays,  unless 
for  special  cause  it  shall  so  order. 

8.  Five  cases  are  liable  to  be  called  on  the  coming  in  of  the  court  on 
each  day. 


892  APPENDIX. 

9.  Revenue  and  other  cases  which  concern  the  United  States,  ami 
which  also  involve  or  affect  some  matter  of  general  public  interest,  and 
criminal  cases,  and  cases  once  adjudicated  by  this  court  on  their  merits 
and  again  brought  up  by  writ  of  error  or  appeal,  may  be  advanced  by 
order  of  the  court. 

10.  Two  or  more  cases  involving  the  same  question  may,  by  leave  of 
the  court,  be  heard  together,  to  be  argued  as  one  case  or  more,  as  the 
court  may  order. 

11.  No  agreement  of  counsel  to  pass  or  postpone  a  case,  or  to  sub- 
stitute one  case  for  another,  shall  become  effective  except  on  leave. 

3d 

22.    MOTIONS. 

Same  as  §  §  1  and  2  of  rule  21  above  for  the  2d  circuit,  except  one  hour 
allowed  for  argument. 

Provisions  governing  the  procedure  in  the  3d  circuit  when  the  parties 
fail  to  appear  or  are  not  ready  are  contained  in  §§  2-6  of  rule  19  for  that 
circuit,  above. 

4th 
22.    PARTIES  NOT  READY. 

1.  When  a  case  is  called  for  hearing,  and  no  counsel  appears  and  no 
brief  has  been  filed  for  the  plaintiff  in  error  or  appellant,  the  defendant 
in  error  or  appellee  may  have  the  adverse  party  called  and  the  writ  of 
error  or  appeal  dismissed. 

2.  Where  the  defendant  in  error  or  appellee  fails  to  appear  when  the 
case  is  called  for  hearing,  the  court  *nay  proceed  to  hear  argument  on 
the  part  of  the  plaintiff  in  error  or  appellant,  and  to  give  judgment 
according  to  the  right  of  the  case. 

3.  When  a  case  is  reached  in  the  regular  call  of  the  docket  and  no 
counsel  appears  for  either  party  and  no  submission  of  the  case  is  asked, 
the  case  may  be  dismissed  at  the  cost  of  the  plaintiff  in  error  or 
appellant. 

6th 
22.    THE  HEARING  CALENDAR. 

1.  Upon  the  expiration  of  the  time  limited  for  filing  briefs,  the  case 
shall  stand  for  hearing  when  reached. 

2.  A  calendar,  containing  all  cases  docketed  and  not  heard,  shall  be 
printed  by  the  clerk  for  the  October,  January  and  April  sessions.     The 
cases  on  the  calendar  which  stand  for  hearing  under  clause  1  will  be 
called  for  argument  in  their  order  (as  far  as  practicable)  on  the  calendar, 
except  as  special  advancements  may  have  been  made. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF.  APPEALS.      893 

3.  By  leave  of  court  and  on  motion  of  either  party  (1)  cases  entitled 
by  statute  to  precedence,  (2)  criminal  cases,  (3)  appeals,  writs  of  error 
or  petitions  to  revise  in  bankruptcy  matters,  and  (4)  cases  which  are 
for  the  second  time  in  this  court, — may  be  advanced  and  set  for  a  desig- 
nated session.     The  court  may  also,  on  its  own  motion  or  for  good  cause 
shown  on  motion  of  either  party,  advance  any  case  to  be  heard  at  any 
session,  though  the  time  permitted  under  the  rules  for  filing  briefs  may 
not  have  expired  at  the  day  set  for  hearing. 

4.  Not  more  than  three  cases  will  be  heard  on  one  day  (counting,  how- 
ever, as  one  case,  two  or  more  which  are  heard  together).     The  call  for 
the  next  day  shall,  at  the  adjournment  of  court,  be  exhibited  in  the 
clerk's  office.     Counsel  choosing  to  rely  on  the  judgment  of  the  clerk  as 
to  the  probable  time  of  hearing  any  case  must  do  so  at  their  own  risk. 

5.  When  the  case  is  called,  if  either  party  is  ready,  the  case  will  be 
heard.    If  there  is  no  appearance  for  either  party,  the  case  will  be  dis- 
missed.   If  the  appellant  does  not  appear  by  counsel  or  by  printed  brief 
but  the  appellee  does  appear,  the  case  will  be  dismissed.    If  the  appel- 
lant appears  and  the  appellee  does  not,  the  court  will  hear  the  appellant. 

6.  By  agreement  of  counsel  in  open  court  or  by  stipulation  filed  in  the 
clerk's  office,  hearing  may  be  continued  once  to  any  later  session^nrin-,' 
the  term  or  from  the  last  session  of  one  term  to  the  first  session  of  the 
next  term, -but  not  to  a  later  day  during  the  same  session.     Subsequent 
continuances  can  be  made  only  by  the  court  and  will  be  only  for  reasons 
satisfactory  to  the  court;  and  engagement  of  counsel  in  other  courts  will 
not  be  considered  good  cause. 

7.  Two  or  more  cases,  involving  the  same  question,  may,  by  order  of 
the  court,  be  heard  together,  but  they  must  be  argued  as  one  cause. 

7th 
22.    PARTIES  NOT  READY. 

1.  Where  no  counsel  appears,  and  no  brief  has  been  filed  for  the  plain- 
tiff in  error  or  appellant,  when  the  case  is  called  for  trial  the  other 
party  may  have  the  writ  of  error  or  appeal  dismissed. 

2.  If  the  appellee  or  defendant  in  error  fails  to  appear  when  the  rase 
is  called,  the  court  may  proceed  to  hear  argument  on  the  part  of  the 
plaintiff  in  error  or  appellant  and  to  give  judgment  according  to  the 
right  of  the  case. 

3.  When  a  case  is  reached  in  the  mrular  call  of  the  docket,  and  there 
is  no  appearance  for  either  party,  and  no  brief  on  file  for  the  appellant 
or  plaintiff  in  error,  the  case  shall  be  dismissed  at  the  cost  of  the 

lant  or  plaintiff  in  error. 


894  «  APPENDIX. 

RULE  23. 
1st      . 


23.    PRINTING  RECORDS. 

1.  In  all  cases,  the  plaintiff  in  error  or  appellant,  on  docketing  a  case 
and  filing  the  record,  shall  enter  into  an  undertaking  to  the  clerk,  with 
surety  to  his  satisfaction,  for  the  payment  of  his  fees,  or  otherwise  sat- 
isfy him  in  that  behalf. 

2.  The  clerk  shall  cause  an  estimate  to  be  made  of  the  cost  of  printing 
the  record,  and  of  his  fee  for  preparing  it  for  the  printer,  and  shall 
notify  to  the  party  docketing  the  case  the  amount  of  the  estimate.     If 
he  shall  not  pay  it  within  a  reasonable  time,  the  clerk  shall  notify  the 
adverse  party,  and  he  may  pay  it.     If  neither  party  shall  pay  it,  and 
for  want  of  such  payment  the  record  shall  not  have  been  printed  when 
the  case  is  reached  at  the  regular  call  of  the  docket,  the  case  may  be 
dismissed. 

3.  Upon  payment  by  either  party  of  the  amount  estimated  by  the 
clerk,  twenty-five  copies  of  the  record  shall  be  printed  under  the  clerk's 
supervision,  for  the  use  of  the  court  and  of  counsel. 

4.  The  clerk  shall  take  to  the  printer  the  original  transcript  on  file, 
but  shall  cause  copies  to  be  made  for  the  printer  of  such  origjnal  papers 
sent  up  under  rule  14,  or  other  original  papers,  as  are  necessary  to  be 
printed. 

5.  The  clerk  shall  supervise  the  printing,  and  see  that  the  printed 
copies  are  properly  indexed;  and  he  shall  distribute  printed  copies  to 
the  judges  and  the  reporter,  from  time  to  time,  as  required,  and  three 
copies  to  the  counsel  for  each  party.     An  additional  number  of  copies 
may  be  printed  at  the  request  of  either  party  for  his  own  use  and  at  his 
own  expense,  or  by  order  of  the  court. 

6.  The  parties  may  stipulate  in  writing  that  parts  only  of  the  record 
shall  be  printed,  and  the  case  may  be  heard  on  the  parts  so  printed;  but 
the  court  may  direct  the  printing  of  other  parts  of  the  record. 

7.  The  clerk  may  receive  from  either  party,  and  use  as  parts  of  the 
printed  record,  «o  far  as  the  same  may  be  of  proper  and  convenient  size 
and  type,  any  portions  which  have  been  printed  in  any  other  court,  and 
also  printed  copies  of  patents  and  other  exhibits,  allowing  the  party  fur- 
nishing the  same  such  sum  therefor  as  the  clerk  deems  reasonable,  to  be 
added  t6  and  form  a  part  of  the  cost  of  printing. 

8.  If  the  actual  cost  of  printing  the  record,  together  with  the  fee  of 
the  clerk,  shall  be  less  than  the  amount  estimated  and  paid,  the  amount 
of  the  difference  shall  be  refunded  by  the  clerk  to  the  party  paying  it. 


RULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OF  AI'l'BALS.      895 

If  the  actual  cost  and  clerk's  fee  shall  exceed  the  estimate,  the  excess 
shall  be  paid  to  the  clerk  before  the  delivery  of  a  printed  copy  to  either 
party  or  his  counsel. 

9.  In  case  of  reversal,  affirmance,  or  dismissal,' with  costs,  the  costs  of 
printing  the  record  and  the  clerk's  fee  shall  be  taxed  against  the  party 
against  whom  costs  are  given,  and  shall  be  inserted  in  the  body  of  the 
mandate  or  other  proper  process. 

[See  order  of  the  supreme  court  establishing  a  table  of  fees  for  the 
circuit  courts  of  appeals.  This  table  appears  below,  6th  circuit,  rule  27, 
subdivision  6.] 

2d 

23.    PRINTING  RECORDS. 

In  cases  which  fall  within  the  provisions  of  the  Act  of  February  13, 
1911  (36  Stats.  901),  the  plaintiff  in  error  or  appellant  will  print  the 
record  and  serve  copies  thereof  in  accordance  with  the  provisions  of  said 
Act.  In  other  cases  on  the  filing  of  the  transcript,  the  clerk  shall  forth- 
with cause  fifteen  copies  of  the  same  to  be  printed,  and  shall. furnish 
three  copies  thereof  to  each  party,  at  least  thirty  days  before  the  argu- 
ment, and  shall  file  nine  copies  thereof  in  his  office.  The  parties  may 
stipulate  in  writing  that  parts  only  of  the  record  shall  be  printed,  and 
the  case  may  be  heard  on  the  parts  so  printed;  but  the  court  may  direct 
the  printing  of  other  parts  of  the  record.  The  clerk  shall  be  entitled  to 
demand  of  the  appellant,  or  plaintiff  in  error,  the  cost  of  printing  the 
record,  before  ordering  the  same  to  be  done.  If  the  record  shall  not 
have  been  printed  when  the  case  is  reached  for  argument,  for  failure  of 
a  party  to  advance  the  costs  of  printing,  the  case  may  be  dismissed. 
In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the  amount  paid 
for  printing  the  record  shall  be  taxed  against  the  party  against  whom 
costs  are  given. 

3d 

23.  PRINTING  AND  DISTRIBUTING  RECORDS. 
1.  It  shall  be  the  duty  of  the  clerk,  immediately  after  the  record  of 
any  case  shall  have -been  filed  with  him  and  docketed  and  the  deposit 
fee  of  forty  dollars  shall  have  been  paid,  to  notify  counsel  for  all  par- 
ties that  he  will  print  only  the  parts  of  the  record  mentioned  in  the 
second  section  of  this  rule,  specifying  what  those  parts  shall  be,  and  to 
notify  the  counsel  for  plaintiff  in  error  or  appellant  of  his  estimate  of 
the  cost  of  printing  such  parts  of  the  record  and  of  his  fee  for  pre- 
paring the  parts  for  the  printer,  indexing  the  same  and  supervising  the 


896  APPENDIX. 

printing  thereof.  He  shall  print  no  other  parts  of  the  record  unless, 
within  ten  days  after  such  notice,  he  receives  from  some  one  or  more  of 
the  counsel  a  written  certificate  that  in  his  or  their  judgment  other  speci- 
fied parts  thereof  should  be  printed  in  order  to  enable  this  court  prop- 
erly to  decide  the  questions  raised,  in  which  event  the  parts  so  certified 
as  necessary  shall  also  be  printed.  The  court  may,  in  its  discretion, 
direct  the  printing  of  other  parts  of  the  record,  and,  in  lieu  of  printing 
patents  or  other  exhibits,  separate  printed  copies  thereof,  not  less  than 
ten  in  number,  may  be  filed  with  the  clerk.  If  other  parts  of  the  record 
than  those  specified  in  his  notice  shall  be  required  to  be  printed  by  any 
of  the  counsel,  or  by  this  court,  the  clerk  shall  immediately  notify  the 
counsel  for  the  plaintiff  in  error  or  appellant  of  his  estimate  of  the  addi- 
tional cost  of  preparing,  printing  and  indexing  such  other  parts.  The 
plaintiff  in  error  or  appellant  shall  pay  to  the  clerk,  within  ten  days 
after  notice  of  any  estimate,  the  amount  thereof,  in  default  of  which  the 
writ  of  error  or  appeal  may  be  dismissed  upon  the  motion  of  the  oppo- 
site party,  or  by  the  court  of  its  own  motion. 

2.  By  writing  filed  either  with  the  clerk  of  this  court,  or  with  the 
clerk  of  the  court  below,  the  plaintiff  in  error  or  the  appellant  may 
waive  the  provisions  of  the  act  of  Congress  approved  February  12,  1911 ; 
and  if  the  act  be  waived  the  printing,  indexing,  supervising  and  dis- 
tributing, shall  be  done  by  the  clerk  of  this  court  as  heretofore  under 
the  provisions  of  rule  23;  and  the  clerk  shall  then  be  entitled  to  charge 
the  supervising  fee  of  twenty-five  cents  per  printed  page,  as  provided 
by  rule  29.     When  the  record  is  printed  below,  the  parties  and  the  clerk 
of  the  District  Court,  and   (when  record  is  printed  in  the  Court  of 
Appeals)  the  clerk  of  this  court,  shall  be  careful  to  avoid  as  far  as  pos- 
sible the  duplication  of  material  in  order  to  reduce  the  costs  and  fees 
attendant  upon  the  printing  the  record. 

3.  Unless  additional  parts  of  the  record  shall  be  required  to  be  printed 
under  the  provisions  of  the  first  section  of  this  rule,  the  clerk  shall  print, 
for  the  use  of  the  court,  only  the  following  parts  thereof: 

In  writs  of  error — 

(a)  The  docket  entries. 

(b)  The  pleadings  on  which  the  case  was  heard  and  determined. 

(c)  The  bill  of  exceptions. 

(d)  The  motion  and  reasons  for  judgment  non  obstante  veredicto,  if 
any. 

(e)  The  opinion  of  the  court  below,  if  any. 

(f )  The  charge  to  the  jury,  if  any. 

(g)  The  verdict  of  the  jury,  if  any. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      897 

(h)  The  judgment  entered, 
(i)  The  assignments  of  error. 

In  appeal — 

(a)  The  docketing  entries. 

(b)  The  pleadings  on  which  the  case  was  held  and  determined. 

(c)  The  evidence,  if  any,  on  which  it  was  heard  and  determined. 

(d)  A  report  of  the  examiner,  master,  auditor,  referee,  or  other  officer 
who  first  decided  the  case,  if  any. 

(e)  The  exceptions  to  that  report,  if  any. 

(f )  The  opinion  of  the  court,  if  any. 

(g)  The  judgment  or  decree  entered, 
(h)  The  assignments  of  error. 

In  bankruptcy  and  other  cases  not  being  strictly  within  either  of  the 
above  classes,  the  printed  record  shall  conform  as  nearly  as  may  be  prac- 
ticable to  the  record  in  appeals. 

4.  The  clerk  shall  cause  twenty-five  copies  of  the  record  to  be  printed, 
and  three  copies  thereof  to  be  furnished  to  the  counsel  of  the  i>!aintifT 
in  error  or  appellant,  and  also  three  copies  to  each  of  the  counsel,  who 
shall  have  entered  appearance  for  any  of  the  other  parties,  and  the  re- 
maining copies  to  be  filed  in  his  office,  all  if  possible,  within  thirty  days 
after  the  payment  to  him  of  the  amount  of  his  estimate  made  under  the 
provisions  of  the  first  section  of  this  rule. 

5.  The  clerk  shall  supervise  the  printing  of  the  record,  have  it  prop- 
erly indexed  and  distribute  printed  copies  thereof  to  the  judges  of  the 
court  from  time  to  time  as  required. 

6.  If  the  actual  cost  of  printing  the  record  aod  the  clerk's  fee  of 
twenty-five  cents  per  page  for  preparing  the  record  for  the  printer, 
indexing  the  same,  supervising  the  printing  and  distributing  the  coj 
shall  be  less  than  the  amount  estimated  and  paid,  the  clerk  shall  rrt'uml 
the  difference  to  the  party  paying  the  same,  but  if  they  shnll  exceed  the 
clerk's  estimate,  the  amount  of  such  excess  shall  be  paid  to  the  clerk 
before  he  shall  file  the  printed  copies  of  the  record  or  deliver  any  of 
them  to  the  parties. 

7.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the  actual 
cost  paid  for  printing  the  record  by  the  party  in  whose  favor  costs  are 
awarded,  and  the  clerk's  fee  for  supervising  the  printing,  etc..  where  such 
fee  is  paid  by  the  parties  in  whose  favor  costs  are  awarded,  shall  be 
taxed  against  the  party  against  whom  costs  are  given  and  shall  be 
inserted  in  the  body  of  the  mandate  or  other  proper  process. 

Manual— *T 


898  APPENDIX. 

8.  Each  printed  record  shall  show  by  a  note  or  memorandum,  the  time 
when  each  pleading  or  document  was  filed,  and  shall  contain  at  the  tops 
of  its  pages  the  running  titles  of  its  contents. 

9.  In  any  case  where  the  record,  or  any  part  thereof,  has  been  printed 
in  the  court  below,  the  same  may  be  embodied  in  and  used  as  the  printed 
record  of  this  court;  provided,  the  manner  and  style  of  printing  shall 
correspond  to  the  requirements  of  the  several  sections  of  this  rule  for 
printing  done  under  the  supervision  of  the  clerk  of  this  court;  but  the 
plaintiff  in  error  or  appellant  shall  pay  to  the  clerk  of  this  court  not 
only  the  deposit  fee  of  forty  dollars  on  filing  the  record  and  having  it 
docketed,  but  also  the  fee  prescribed  by  rule  29  for  preparing  the  record 
for  the  printer,  indexing  the  same,  supervising  the  printing  and  dis- 
tributing the  copies  thereof. 

10.  The  clerk  shall  on  or  before  the  conclusion  of  each  case,  collect 
and  file  for  preservation  in  this  court  three  copies  of  the  printed  record 
and  of  each  brief,  printed  motion  and  argument  submitted  in  such  case, 
and  shall  immediately  after  the  mandate  in  any  case  shall  have  been  sent 
down  to  the  lower  court,  notify  the  defeated  party  in  this  court  that 
unless  he  removes  the  remaining  copies  of  the  record  and  brief  within 
ten  days  after  notice  so  to  do,  the  same  will  be  destroyed, 

4th 
23.    PRINTING  RECORDS  BY  CONSENT. 

This  rule  shall  apply  only  to  cases  in  which  counsel  for  all  parties  to 
any  cause  pending  in  this  court,  or  about  to  be  brought  into  this  court, 
shall  by  stipulation,,  in  writing,  filed  with  the  clerk  of  the  court  below, 
agree  to  be  governed  by  the  terms  hereof. 

1.  The  transcript  may  be  made  and  the  record  printed  as  has  been 
heretofore  the  practice  of  this  court,  and  the  same  shall,  subject  to  the 
provisions  §  §  3,  6,  and  7  of  rule  14,  be  made  up  by  the  clerk  of  the  court 
below  and  transmitted  to  this  court  under  his  hand  and  seal  as  heretofore. 

2.  All  records  in  such  cases  shall  be  printed  under  the  supervision  of 
the  clerk  of  this  court  by  such  printer  and  at  such  rate  as  this  court 
may  designate.     In  such  cases,  upon  the  payment  of  the  estimated  cost 
of  printing,  together  with  the  supervising  and  other  fees  established  by 
law   (which  amount  shall  be  deposited  with  the  clerk  within  ten  days 
after  notice  thereof),  the  clerk  shall  cause  to  be  printed  thirty-five  copies 
of  the  record,  twenty-five  copies  of  which  shall  be  filed  for  the  use  of 
the  court,  three  copies  furnished  to  the  adverse  party,  and  the  remaining 
«opies  to  be  delivered  to  the  appellant,  plaintiff  in  error  or  petitioner. 


RULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OF  AIM 'HALS.      899 

3.  The  parties  may  stipulate  in  writing  that  parts  only  of  the  tran- 
script of  the  record  shall  be  printed,  and  the  case  may  be  heard  on  the 
parts  so  printed,  but  the  court  may  direct  the  printing  of  other  parts  of 
the  record. 

4.  If  the  record  shall  not  have  been  printed  when  the  case  is  reached 
on  the  regular  call  of  the  docket,  the  case  may  be  dismissed. 

5.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the  amount 
paid  for  the  printing  of  the  record  and  the  clerk's  fees  for  supervising, 
the  same  shall  be  taxed  against  the  party  against  whom  costs  are  given. 

6.  In  cases  brought  here  under  this  rule  it  shall  b£  the  duty  of  the 
plaintiff  in  error  or  appellant  to  docket  the  case  and  file  the  record 
thereof  with  the  clerk  of  this  court  by  or  before  the  return  day,  whether 
in  vacation  or  in  term  time  but  for  good  cause  shown  the  justice  or 
judge  who  signed  the  citation,  or  any  judge  of  this  court,  may  enl.-i 
the  time  by  or  befoi'e  its  expiration,  the  order  of  enlargement  to  he  filed 
with  the  clerk  of  this  court.     If  the  plaintiff  in  error  or  appellant  shall 
fail  to  comply  with  this  rule,  the  defendant  in  error  or  appellee  may 
have  the  cause  docketed  and  dismissed  upon  producing  a  ccrtilic-ato  from 
the  clerk  of  the  court  wherein  the  judgment  or  decree  was  rendered, 
stating  the  case  and  certifying  that  such  writ  of  error  or  appeal  has  been 
duly  sued  out  or  allowed.     And  in  no  case  shall  the  plaintiff  in  error  or 
appellant  be  entitled  to  docket  the  case  and  file  the  record  after  the 
same  shall  have  been  docketed  and  dismissed  under  this  rule  unless  by 
order  of  the  court. 

7.  But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket 
the  case  and  file  a  copy  of  the  record  with  the  clerk  of  this  court;  and  if 
the  case  is  docketed  and  a  copy  of  the  record  filed  with  the  clerk  of  this 
court  by  the  plaintiff  in  error  or  appellant  within  the  period  of  time 
above  limited  and  prescribed  by  this  rule,  or  by  the  defendant  in  error 
or  appellee  at  any  time  thereafter,  the  case  shall  stand  for  argument  at 
the  term. 

8.  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by  a  writ 
of  error  or  appeal,  the  appearance  of  the  counsel  for  the  party  docketing 
the  case  shall  be  entered  as  of  course. 

5th 
23.    PRINTING  RECORDS. 

1.  The  clerk  shall,  upon  the  docketing  of  a  case,  forthwith  cause  an 
estimate  to  be  made  of  the  cost  of  printing  the  record  and  of  his  !><•  for 
preparing  it  for  the  printer  and  supervising  the  printing;  an<l  shnll 
notify  the  party  docketing  the  case  of  the  amount  of  the  estimate.  It 


900  APPENDIX. 

he  shall  not  pay  it  within  fifteen  days  in  ordinary  cases,  and  within 
three  days  in  preference  cases,  after  the  date  of  such  notice,  the  clerk 
shall  notify  the  adverse  party,  and  he  may  pay  it.  If  neither  party 
shall  pay  it,  and  for  want  of  such  payment  the  records  shall  not  have 
been  printed  when  a  case  is  reached  for  hearing,  the  case  may  be  dis- 
missed at  the  discretion  of  the  court.  (As  amended  Jan.  12,  1905.) 

2.  The  clerk  shall  cause  the  record  in  all  cases  to  be  printed  forthwith 
after  the  payment  of  such  estimate,  and  shall  immediately  thereafter 
furnish  to  the  counsel  of  each  party  whose  appearance  shall  have  been 
entered,  three  copies  of  the  printed  record,  taking  a  receipt  therefor,  and 
the  parties  may,  by  written  stipulation  filed  prior  to  the  printing  of  the 
record,  agree  that  only  parts  of  the  record  shall  be  printed,  and  the 
same  may  be  heard  only  on  the  part  so  printed,  but  the  court  may 
direct  the  printing  of  other  parts  of  the  record. 

3.  The  clerk  shall  not  take  to  the  printer  the  original  transcript  on 
file,  but  shall  cause  copies  to  be  made  for  the  printer  of  such  original 
papers  sent  up  under  rule  14,  or  other  original  papers,  as  are  necessary 
to  be  printed. 

4.  The  clerk  shall  cause  at  least  twenty-five  copies  of  the  record  to  be 
printed,  and  may  print  a  larger  number  on  the  request  of  either  party 
on  payment  of  the  amount  necessary  for  the  printing  of  such  extra 
copies. 

5.  The  clerk  shall  supervise  the  printing  and  see  that  the  printed  rec- 
ord is  properly  indexed.     There  shall  be  omitted  from  the  printed  tran- 
scripts the  following: 

(1)  Commissions  to  take  testimony,  and  the  formal  captions  to  all 
depositions,  and  the  certificates  of  commissioners  as  to  the  taking  of  tho 
depositions,  except  in  cases  where  objections  have  been  made  to  the 
depositions  on  account  of  defects  in  caption  or  certificate. 

(2)  All  process  in  the  nature  of  subpoenas,  citations,  summons  and 
subpoenas  in  chancery,  unless  from  the  assignment  of  errors  it  appears 
that  some  issue  is  raised  which  makes  it  necessary  for  the  court  to 
inspect  such  writs,  and  then  only  such  as  are  involved. 

In  every  transcript  wherein  any  pleading,  exhibit  or  other  paper 
appears  at  more  than  one  place,  such  pleading,  exhibit  or  other  paper 
shall  be  printed  at  the  place  it  first  appears  in  said  transcript,  and  not 
thereafter;  but  the  omission  shall  be  indicated  by  apt  notations  and 
references  to  the  pages  of  the  printed  record  where  it  appears. 

The  clerk  shall  distribute  the  printed  copies  to  the  judges  of  the  court 
and  to  the  reporter  from  time  to  time,  as  required.  If  the  cost  of  print- 
ing the  record,  together  with  the  clerk's  fee  for  supervising  the  same, 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      901 

;  shall  bo  less  than  the  amount  estimated  and  paid,  the  difference  shall  be 
refunded  by  the  clerk  to  the  party  paying  the  same.  If  the  actual  cost 
and  the  clerk's  fee  shall  exceed  the  clerk's  estimate,  the  amount  of  -such 
excess  shall  be  paid  to  the  clerk  before  he  shall  deliver  or  file  the  printed 
record  or  any  copies  thereof.  (As  amended  and  promulgated  Dec.  8, 
1905.) 

6.  In  case  of  reversal,  affirmance  or  dismissal  with  costs,  the  amount 
of  the  costs  of  the  printing  of  the  record  and  of  the  clerk's  fee  for  super- 
vising the  same  shall  be  taxed  against  the  party  against  whom  costs  are 
given,  and  shall  be  inserted  in  the  body  of  the  mandate  or  other  proper 
process. 

7.  The  clerk  shall  receive  from  either  party,  and  use  as  parts  of  the 
printed  record  so  far  as  the  same  may  be  of  proper  size  and  type,  any 
portions  which  may  have  been  printed  in  any  other  court,  and  also 
printed  copies  of  patents  and  exhibits,  allowing  the  party  furnishing  the 
same  such  sums  therefor  as  the  clerk  deems  reasonable,  to  be  added  to 
and  form  a  part  of  the  cost  of  printing. 

8.  When  the  transcript  presented  to  the  clerk  for  docketing  shows 
that  the  plaintiff  in  error  or  appellant  has  been  found  by  the  District 
Court,  or  the  judge  thereof,  to  be  a  poor  person  within  the  purview  and 
meaning  of  the  act  of  Congress,  approved  June  25th,  1910,  entitled  "An 
Act  to  amend  Section  one,  chapter  two  hundred  and  nine  of  the  United 
States  Statutes  at  Large,  volume  twenty-seven,  entitled  'An  act  provid- 
ing when  plaintiff  may  sue  as  a  poor  person  and  when  counsel  shall  be 
assigned  by  the  court,'  and  to  provide  for  the  prosecution  of  writs  of 
error  and  appeals  in  forma  pauperis,  and  for  other  purposes"   (see  36 
Statutes  at  Large,  part  1,  page  866) ;  and  as  such  poor  person,  has  been 
authorized  by  said  court  or  judge  to  prosecute  appellate  proceedings 
under  said  act  of  Congress,  the  clerk  will  file  the  transcript  and  docket 
the  case  without  prepayment  of  fees  or  costs  or  for  the  printing  of  the 
record,  and  without  requiring  security  therefor;  and  to  this  extent  para- 
graph 4,  rule  16  is  amended,  and  rule  24  is  so  far  amended  as  to  dis- 
pense with  printed  briefs  in  forma  pauperis  cases.     (Promulgated  Dec. 
3, 1914.) 

6th 

23.    ORAL  ARGUMENTS. 

1.  Cases  will  not  be  taken  upon  briefs  without  oral  artmmpTit.  exrppt 
by  permission  of  the  court  on  special  application  made  before  the  case  is 
reached. 


902  APPENDIX. 

2.  The   appellant   shall   be  entitled  to  open   and  to   conclude.     Cross- 
appeals  or  cross  writs  of  error  shall  be  argued  together  as  one  case,  and 
the  plaintiff  below  shall  be  considered  as  appellant  under  this  rule. 

3.  Two  counsel,  and  no  more  (unless  by  special  permission),  may  be 
heard  for  each  party;  but  where  no  brief  is  filed  and  no  counsel  is  heard 
for  one  party,  only  one  counsel  will  be  heard  for  the  adverse  party. 

4.  One  hour  and  one  half  on  each  side  will  be  allowed  for  argument, 
and  no  more,  unless  by  leave  of  the  court  granted  before  the  argument 
begins.     The  time  thus  allowed  may  be  apportioned  between  the  counsel 
on  the  same  side  at  their  discretion,  provided  that  a  fair  opening  of  the 
case  is  made  by  the  appellant. 

7th 
23.    PRINTING  THE  RECORD. 

1.  In  all  cases  the  plaintiff  in  error  or  appellant  on  docketing  a  case 
and  filing  the  record  shall  enter  into  an  undertaking  to  the  clerk  with 
surety  to  be  approved  by  the  clerk  for  the  payment  of  all  costs  which 
shall  be  incurred  in  the  cause,  shall  deposit  with  the  clerk  twenty-five 
dollars  to  be  applied  to  the  payment  of  costs  and  fees,  and  from  time  to 
time  when  necessary  shall,  on  the  demand  of  the  clerk,  make  further 
deposits  for  that  use. 

2.  The  clerk,  upon  the  docketing  of  a  case,  shall  forthwith  cause  an 
estimate  to  be  made  of  the  cost  of  printing  the  record  and  of  his  fees 
for  preparing  it  for  the  printer  and  for  supervising  the  printing  thereof, 
and  shall  at  once  notify  the  attorney  for  the  plaintiff  in  error,  or  appel- 
lant, of  the  amount  of  such  estimate,  which  shall  be  paid  to  the  clerk 
within  ten  days  after  such  notice.     If  not  so  paid,  the  writ  of  error  or 
appeal  may  be  dismissed  upon  the  motion  of  the  opposite  party,  or  by 
the  court  of  its  own  motion. 

3.  The  clerk  shall  cause  the  record  in  each  case  to  be  printed  forth- 
with after  the  payment  of  such  estimate,  and  shall  immediately  there- 
after furnish  to  each  of  the  respective  parties  at  least  three  copies  of 
the  printed  record,  taking  a  receipt  therefor.     The  parties  may,   by 
written  stipulation  filed  with  or  prior  to  the  filing  of  the  record,  agree 
that  only  parts  of  the  record  shall  be  printed,  and  the  case  will  be  heard 
on  the  parts  so  printed  only,  unless  the  court  shall  direct  the  printing  of 
other  parts. 

4.  The  clerk  shall  cause  at  least  twenty-five  copies  of  the  record  to  be 
printed  and  may  print  a  larger  number  on  the  request  of  either  party  on 
the  payment  of  the  amount  necessary  for  the  printing  of  such  extra 
copies. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEAL.      903 

5.  The  clerk  shall  supervise  the  printing  and  sec  that   tlio  printed 
record  is  indexed  properly,  and  in  a  manner  to  indicate  briefly  the  char- 
acter of  each  document  and  exhibit  referred  to.     lie  shall  distribute  the 
printed  copies  to  the  judges  of  the  court  from  time  to  time  as  required. 
If  the  cost  of  printing  the  record,  together  with  the  clerk's  fee  for  super- 
vising the  same,  shall  be  less  than  the  amount  estimated  and  paid,  the 
difference  shall  be  refunded  by  the  clerk  to  the  party  paying  the  same. 
If  the  actual  cost  and  the  clerk's  fee  shall  exceed  the  estimate,  the 
amount  of  the  excess  shall  be  paid  to  the  clerk  before  he  shall  deliver  or 
file  the  printed  record  or  copies  thereof. 

6.  In  case  of  reversal,  affirmance  or  dismissal  with  costs,  the  amount 
of  the  cost  of  the  printing  of  the  record  and  of  the  clerk's  fee  for  super- 
vising the  same  shall  be  taxed  against  the  party  against  whom  costs  are 
given,  and  shall  be  inserted  in  the  body  of  the  mandate  or  other  process. 

7.  Upon  the  clerk's  producing  satisfactory  evidence  by  affidavit,  or  by 
the  acknowledgment  of  the  parties  or  their  sureties  or  attorneys,  of  hav- 
ing served  a  copy  of  the  bill  of  fees  due  from  them  respectively  in  this 
court  on  such  parties,  their  sureties  or  attorneys,  an  attachment  shall 
issue  against  such  parties  or  their  sureties,  respectively,  to  compel  the 
payment  of  said  fees. 

8.  The  clerk  shall  adopt  a  uniform  size  for  the  printing  of  all  records, 
shall  have  them  printed  in  small  pica  type,  on  clear  white  paper,  with  a 
margin  of  not  less  than  an  inch  and  a  half,  shall  show  by  note  or  memo- 
randum on  the  margin  the  time  when  each  pleading  or  document  was  filed, 
and  at  the  top  of  the  pages  shall  insert  running  titles  of  their  contents. 

9.  The  briefs  of  attorneys  shall  be  printed  and  shall  conform  as  nearly 
as  practicable  to  the  size  of  the  printed  record. 

10.  The  clerk  shall,  on  or  before  the  conclusion  of  each  case,  collect 
and  file  or  otherwise  preserve  together  one  copy  of  the  printed  record 
and  of  each  brief,  printed  motion  and  argument  submitted  therein. 

11.  In  any  case  where  the  record  shall  have  been  printed  in  the  court 
below,  in  substantial  conformity  to  these  rules,  presiding  judge  may.  on 
the  application  of  the  plaintiff  in  error  or  appellant  order  that  such 
printed  record  be  used  in  place  of  the  printing  hereinbefore  provided 
for.    But  the  clerk  shall  prepare  and  catise  to  be  printed  and  attached 
to  such  record  an  index,  and  shall  be  paid  the  same  fees  for  the  indexing 
and  supervising  thereof  as  if  printed  under  his  supervision. 

12.  The  clerk  of  this  court  shall  obtain  sealed  proposals  for  tl-p  print- 
ing hereinbefore  provided  for,  which  proposals  slinll  be  submitted  to  the 
senior  circuit  judge  of  the  court,  who  may  award  such  printing  to  the 
lowest  and  best  bidder,  and  all  such  printing  shall  be  done  by  the  person 


904  APPENDIX. 

to  whom  the  same  is  so  awarded,  except  in  emergencies  when  printing1 
may  be  done  by  another  at  the  same  or  less  price.  And  when  a  case 
shall  be  heard  upon  the  record  printed  below,  the  costs  for  printing  shall 
be  taxed  on  the  basis  of  actual  cost  not  exceeding  the  rate  of  the  ac- 
cepted bid. 

8th 

23.    PRINTING  RECORDS. 

1.  In  cases  brought  to  this  court  in  which  the  plaintiff  in  error  or  ap- 
pellant elects  to  waive  the  printing  of  the  record  under  the  provisions 
of  the  act  of  Congress,  entitled  "An  Act  to  Diminish  the  Expense  of 
Proceedings  on  Appeal  and  Writ  of  Error  or  of  Certiorari,"  approved 
February  13,  1911,  and  file  a  typewritten  or  manuscript  transcript  of  the 
record  in  this  court,  such  plaintiff  in  error  or  appellant  may  within 
twenty  days  from  and  after  the  date  of  the  filing  and  docketing  of  the 
record  in  this  court,  serve  on  the  adverse  party  a  copy  of  a  statement  of 
the  parts  of  the  record  which  he  thinks  necessary  for  the  consideration 
of  the  errors  assigned,  and  file  the  same,  with  proof  of  service  thereof, 
with  the  clerk  of  this  court ;  the  adverse  party,  within  twenty  days  there- 
after, may  designate  in  writing  and  file  with  the  clerk  additional  parts 
of  the  record  which  he  thinks  material,  and,  if  he  shall  not  do  so,  he  shall 
be  held  to  have  consented  to  a  hearing  on  the  parts  designated^  by  the 
plaintiff  in  error  or  appellant.     If  parts  of  the  record  shall  be  so  desig- 
nated by  one  or  both  of  the  parties,  the  clerk  shall  print  those  parts 
only;  and  the  court  will  consider  nothing  but  those  parts  of  the  record 
in  determining  the  questions  raised  by  the  errors  assigned.    If  at  the 
hearing  it  shall  appear  that  any  material  part  of  the  record  has  not  been 
printed,  the  writ  of  error  or  appeal  may  be  dismissed,  or  such  other 
order  made  as  the  circumstances  may  appear  to  the  court  to  require. 
If  the  defendant  in  error  or  appellee  shall  have  caused  unnecessary 
parts  of  the  record  to  be  printed,  such  order  as  to  costs  may  be  made 
as  the  court  shall  think  proper. 

2.  On  the  filing  of  the  transcript  in  every  such  case  the  clerk  shall  cause 
thirty  copies  of  the  same,  or  the  parts  thereof  designated  under  this 
rule,  to  be  printed,  and  such  additional  number  of  copies  as  counsel  for 
either  of  the  parties  may  direct,  and  shall  furnish  three  copies  of  the 
record  so  printed  to  each  party  at  least  sixty  days  before  the  argument. 

3.  In  cases  brought  to  this  court  in  which  the  record  has  been  printed 
and  used  upon  the  hearing  in  the  court  below,  and  which  substantially 
conform  to  the  printed  records  in  this  court,  the  plaintiff  in  error  or  ap- 
pellant upon  application  to  and  by  leave  of  this  court,  may  furnish  to  the 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      905 

•  clerk  twenty-five  copies  of  such  record,  used  on  the  hearing  in  the  court 
below,  to  be  used  in  the  preparation  of  the  printed  record  in  this  court; 
and  the  clerk's  fee  f.or  preparing  the  record  for  the  printer,  indexing 
same,  supervising  the  printing  and  distributing  the  copies,  shall  be  com- 
puted as  if  said  record  so  furnished  had  been  printed  under  his  super- 
vision. 

4.  The  clerk  shall  be  entitled  to  demand  of  the  plaintiff  in  error  or 
appellant  the  cost  of  printing  the  record  before  ordering  the  same  to  be 
done. 

5.  If  the  record  shall  not  have  been  printed  when  the  case  is  reached 
for  argument,  for  failure  of  the  party  to  advance  the*  cost  of  printing, 
the  case  may  be  dismissed. 

6.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the  amount 
paid  for  printing  the  record  shall  be  taxed  against  the  party  against 
whom  costs  are  given. 

7.  In  any  cause  brought  to  this  court,  in  which  the  record  has  been 
printed,  in  which  a  writ  of  certiorari  shall  be  granted  under  the  provi- 
sions of  rule  18  of  this  court,  the  return  to  each  writ  of  certiorari  shall 
be  printed  in  the  same  manner  as  the  record  was. 

8.  If  in  any  cause  in  which  the  record  or  a  portion  thereof  has  been 
printed  it  shall  be  made  to  appear  to  this  court  that  the  printed  tran- 
script does  not  substantially  conform  to  the  requirements  of  the  rules vof 
this  court,  it  may  be  rejected  and  stricken  from  the  files  and  such  order 
relative  thereto  may  be  entered  as  the  court  shall  deem  proper. 

9th 
23.    PRINTING  RECORDS. 

1.  All  records  excepting  in  cases  prosecuted  under  Act  Feb.  13,  1911, 
shall  be  printed  under  the  supervision  of  the  clerk  of  this  court,  and 
upon  the  docketing  of  the  cause,  he  shall  cause  an  estimate  to  be  made 
of  the  expense  of  printing  the  record,  and  his  fee  for  preparing  it  for 
the  printer  and  supervising  the  printing,  and  shall  notify  the  party 
docketing  the  case  of  the  amount  of  the  estimate.    If  the  amount  so 
estimated  is  not  promptly  paid  over  to  the  clerk,  and  for  want  of  such 
payment  the  record  shall  not  have  been  printed  when  a  case  is  reached 
for  argument,  the  case  shall  be  dismissed. 

2.  Upon  payment  of  the  amount  estimated  by  the  clerk,  eighty  oopies 
of  the  record  shall  be  printed,  under  his  supervision,  for  the  use  of  the 
court  and  of  counsel. 

3.  In  cases  of  appellate  jurisdiction  the  original  transcript  on  file  shall 
be  taken  by  the  clerk  to  the  printer.    But  the  clerk  shall  cause  copies  to 


906  APPENDIX. 

be  made  for  the  printer  of  such  original  papers  sent  up  tinder  rule  14, 
§  4,  as  are  necessary  to  be  printed;  and  the  whole  of  the  record  in  cases 
of  original  jurisdiction. 

4.  In  all  cases,  excepting  those  prosecuted  under  said  act  of  Congress, 
the  clerk  of  this  court  shall  prepare  the  record  for  the  printer,  index  the 
same,  supervise  the  printing  and  distribute  the  printed  copies  to  the 
judges  and  the  reporter,  and  one  or  more  printed  copies  to  the  counsel 
for  the  respective  parties. 

5.  In  cases  prosecuted  under  said  act  of  Congress  in  which  it  is  neces- 
sary to  print  records  or  other  matter  under  the  supervision  of  the  clerk 
of  this  court,  the  «lerk  shall  prepare  such  records  or  other  matter  for  the 
printer,  index  the  same,  supervise  the  printing  and  distribute  the  printed 
copies  to  the  judges  and  the  reporter  and  one  or  more  printed  copies  to 
the  counsel  for  the  respective  parties. 

6.  If  the  expense  of  printing  and  supervision  shall  be  less  than  the 
amount    estimated  and  paid,  the  clerk  shall  refund  the  difference  to 
the  party  paying  same.     If  the  expense  is  greater  than  the  estimate  the 
amount  of  such  excess  shall  be  paid  to  the  clerk  before  he  shall  file  the 
printed  record  or  deliver  copies  to  the  parties  or  their  counsel. 

7.  In  case  of  reversal,  affirmance  or  dismissal,  with  costs,  the  amount 
paid  for  printing  the  record  and  of  the  clerk's  fee  shall  be  taxed  against 
the  party  against  whom  costs  are  given. 

8.  The  plaintiff  in  error  or  appellant  may,  upon  filing  the  record  in 
this  court,  file  with  the  clerk  a  statement  of  the  errors  on  which  he  in- 
tends to  rely,  and  of  the  parts  of  the  record  which  he  thinks  necessary 
for  the  consideration  thereof,  and  forthwith  serve  on  the  adverse  party 
a  copy  of  such  statement.     The  adverse  party,  within  ten  days  there- 
after, may  designate,  in  writing^  filed  with  the  clerk,  additional  parts 
of  the  record  which  he  thinks  material;  and,  if  he  shall  not  do  so,  he 
shall  be  held  to  have  consented  to  a  hearing  on  the  parts  designated  by 
the  plaintiff  in  error  or  appellant.    If  parts  of  the  record  shall  be  so 
designated  by  one  or  both  of  the  parties,  or  if  such  parts  be  distinctly 
designated  by  stipulation  of  counsel  for  the  respective  parties,  the  clerk 
shall  print  those  parts  only;  and  the  court  will  consider  nothing  but 
those  parts  of  the  record,  and  the  errors  so  stated.     If  at  the  hearing  it 
shall  appear  that  any  material  part  of  the  record  has  not  been  printed, 
the  writ  of  error  or  appeal  may  be  dismissed,  or  such  other  order  made  as 
the  circumstances  may  appear  to  the  court  to  require.     If  the  defendant 
in  error  or  appellee  shall  have  caused  unnecessary  parts  of  the  record  to 
be  printed  such  order  as  to  costs  may  be  made  as  the  court  shall  think 
proper. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      907 

All  statements  and  stipulations  filed  hereunder  shall  distinctly  and 
accurately  refer  to  the  pages  of  the  original  certified  record  as  well  as 
the  documents  to  be  printed  or  omitted. 

9.  At  the  time  of  filing  the  record  and  docketing  the  cause,  counsel  for 
the  plaintiff  in  error  or  appellant  in  patent  cases  may  furnish  the  clerk 
with  copies  of  patent  office  drawings  and  specifications  to  be  used  as  in- 
serts, and  the  same,  if  in  proper  form  and  of  convenient  size,  shall  be 
used  in  printing  the  record. 

10.  In  all  cases  prosecuted  to  this  court  in  which  records  or  other 
jnatter  shall  be  printed  under  the  supervision  of  the  clerk  of  this  court, 
his  fee  for  preparing  the  same  for  the  printer,  supervising  the  printing, 
indexing,  and  distributing  the  copies,  shall  be  twenty-five  cents  for  each 
printed  page  of  the  record  and  index,  as  provided  by  law.  . 

RULE  24  (Seven  Subdivisions). 

The  rule  in  the  sixth  circuit,  being  entirely  different  from  that  under 
this  number  in  the  other  circuits,  will  follow  the  last  subdivision  of  this 
rule  on  Briefs.  The  rule  on  "Briefs"  in  the  sixth  circuit  is  rule  20, 
above,  and  see  also  rule  21  in  that  circuit  above. 

BRIEFS. 

24.    SUBDIVISION  L 
1st 

1.  The  counsel  for  the  plaintiff  in  error  or  appellant  shall  file  with  the 
clerk  of  this  court,  at  least  six  days  before  the  case  is  called  for  argu- 
ment, twenty  copies  of  a  printed  brief,  one  of  which  shall,  on  applica- 
tion, bo  furnished  to  each  of  the  counsel  engaged  upon  the  opposite  side. 

2d 

1.  Counsel  for  the  plaintiff  in  error,  or  appellant,  shall  file  with  the 
clerk  of  this  court  at  least  twenty  days  before  the  case  is  called  for 
argument,  ten  copies  of  a  printed  brief,  one  of  which  shall,  on  applica- 
tion, be  furnished  to  each  of  the  counsel  engaged  upon  the  opposite  side. 

3d 

1.  In  each  case  in  which  the  printed  record  has  been  delivered  by  the 
clerk  to  the  counsel  for  the  plaintiff  in  error  or  appellant  sixty  or  more 
days  before  the  first  day  of  the  term,  such  counsel  shall  file  twenty  copies 
of  his  brief  with  the  clerk  not  less  than  thirty  days  before  the  first  day 
of  such  term;  in  each  case  in  which  the  printed  record  has  been  delivered 


908  APPENDIX. 

by  the  clerk  to  such  counsel  between  thirty  days  and  sixty  days  before 
the  first  day  of  such  term,  twenty  copies  of  such  brief  shall  be  filed  with 
the  clerk  not  less  than  twenty  days  before  the  first  day  of  such  term; 
and  in  all  other  cases  twenty  copies  of  such  brief  shall  be  filed  with  the 
clerk  not  more  than  fifteen  days  after  receipt  of  such  printed  record. 
Within  the  same  time  such  counsel  shall  give  to  counsel  for  the  defend- 
ant in  error  or  appellee  not  less  than  five  copies  of  such  brief. 

4th 

1.  The  counsel  for  plaintiffs  in  error  or  appellant  shall  file  with  the 
elerk  of  this  court,  at  least  fifteen  days  before  every  term  or  adjourned 
term,  twenty  (20)  copies  of  a  printed  brief,  one  of  which  shall  forthwith 
be  furnished  by  the  clerk  to  each  of  the  counsel  of  record  engaged  upon 
opposite  side. 

5th 

1.  The  counsel  for  the  plaintiff  in  error,  appellant  or  petitioner,  shall 
file  with  the  clerk  of  this  court,  at  least  fifteen  days  in  ordinary  cases, 
and  five  days  in  preference  cases,  before  the  case  is  called  for  argument, 
twenty  copies  of  the  printed  brief,  one  to  be  signed  in  handwriting  by 
an  attorney  of  this  court,  who  has  entered  an  appearance  in  the  case; 
one  copy  of  the  brief  shall,  on  application,  be  furnished  to  each  of  the 
counsel  engaged  upon  the  opposite  side.  (As  amended  Jan.  12th,  1905.) 

s 

6th 

See  this  circuit,  subd.  1,  rule  20,  above. 

7th 

1.  The  counsel  for  the  plaintiff  in  error  or  appellant  shall  file  with  the 
clerk  of  this  court,  within  twenty  days  after  the  date  of  the  delivery  by 
the  clerk  of  the  printed  record,  20  copies  of  a  printed  brief,  one  of  which 
shall,  on  application,  be  furnished  to  each  of  the  counsel  engaged  upon 
the  opposite  side. 

8th 

1.  Counsel  for  the  plaintiff  in  error  or  appellant  shall  file  with  the 
clerk  of  this  court,  at  least  forty  days  before  the  case  is  called  for  argu- 
ment, twenty  copies  of  a  printed  brief,  one  of  which  shall,  on  applica- 
tion, be  furnished  to  each  of  the  counsel  engaged  upon  the  opposite  side. 

9th 

1.  The  counsel  for  the  plaintiff  in  error  or  appellant  shall  file  with 
the  clerk  of  this  court  twenty  copies  of  a  printed  brief,  and  serve  upon 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      909 

counsel  for  the  defendant  in  error  or  the  appellee  one  copy  thereof,  at 
least  fifteen  days  before  the  case  is  called  for  argument. 

(To  this  rule  were  added  the  following  notes:  Briefs  signed  by  counsel 
who  are  not  members  of  the  bar  of  this  court  or  fully  qualified  under  tin- 
provisions  of  rule  7  will  not  be  considered  by  the  court.  See,  also,  sub- 
division 2  of  rule  26.) 

24.    SUBDIVISION  2. 
1st        2d  4th        5th  7th        9th 

2.  This  brief  shall  contain,  in  order  here  stated, — 

(1)  A  concise  abstract  or  statement  of  the  case  presenting  succinctly 
the  questions  involved,  in  the  manner  in  which  they  are  raised. 

(2)  A  specification  of  the  errors  relied  upon,  which,  in  cases  brought 
up  by  writ  of  error,  shall  set  out  separately  and  particularly  each  error 
asserted  and  intended  to  be  urged ;  and,  in  cases  brought  up  by  appeal, 
the  specifications  shall  state,  as  particularly  as  may  be,  in  what  tlu- 
decree  is  alleged  to  be  erroneous.     When  the  error  alleged  is  to  the  ad- 
mission or  to  the  rejection  of  evidence,  the  specification  shall  quote  the 
full  substance  of  the  evidence  admitted  or  rejected.    When  the  error 
alleged  is  to  the  charge  of  the  court,  the  specification  shall  set  out  the 
part  referred  to  totidem  verbis,  whether  it  be  in  instructions  given  or 
in  instructions  refused.     When  the  error  alleged  is  to  a  ruling  upon  the 
report  of  a  master,  the  specification  shall  state  the  exception  to  the 
report  and  the  action  of  the  court  upon  it. 

(3)  A  brief  of  the  argument  exhibiting  a  clear  statement  of  the  points 
of  law  or  facts  to  be  discussed,  with  a  reference  to  the  pages  of  the 
record  and  the  authorities  relied  upon  in  support  of  each  point.     When 
a  statute  of  a  state  is  cited,  so  much  thereof  as  may  be  deemed  necessary 
to  the  decision  of  the  case  shall  be  printed  at  length. 

3d 

2.  This  brief  shall  contain,  in  the  order  here  stated — 

(a)  The  names  of  the  parties  and  the  nature  of  the  proceedings. 

(b)  A  short  abstract  of  the  bill  or  declaration  or  petition,  and  of  the 
plea  or  answer. 

(c)  A  statement  of  the  question  or  questions  involved,  which  shall  be 
in  the  briefest  and  most  general  terms,  without  names,  dates,  amounts  or 
particulars  of  any  kind  whatever.  t 

(d)  A  concise  abstract  or  statement  of  the  case. 

(e)  The  assignments  of  error  relied  on,  and,  where  any  assifrnment  of 
error  is  based  on  any  bill  of  exceptions  or  any  part  of  *  bill  of  excep- 


910  APPENDIX. 

tions,  a  reference  to  the  particular  page  of  the  record  where  the  excep- 
tion may  be  found. 

(f )  -  Argument  on  the  part  of  the  plaintiff  in  error  or  appellant,  which 
shall  exhibit  a  clear  statement  of  the  points  of  law  or  fact  to  be  dis- 
cussed, with  a  reference  to  the  pages  of  the  record  and  the  authorities 
relied  upon  in  support  of  each  point.  When  a  statute  of  a  state  is  cited, 
so  much  thereof  as  may  be  deemed  necessary  to  the  decision  of  the  case 
shall  be  printed  at  length. 

6th 

See  this  circuit,  rule  20,  subd.  2,  above. 

8th 

2.  This  brief  shall  be  printed  on  unglazed  paper,  and  it  and  all  quota- 
tions contained  therein  shall  be  in  substantial  conformity  with  the  size 
and  type  prescribed  by  rule  26  for  the  printing  of  records  and  shall  con- 
tain, in  order  here  stated — 

(1),  (2)  and  (3)  same  as  1st  circuit. 

24.    SUBDIVISION  3. 
1st      9th 

3.  The  counsel  for  a  defendant  in  error  or  an  appellee  shall  file  with 
the  clerk  twenty  printed  copies  of  his  brief  and  serve  upon  counsel  for 
plaintiff  in  error  or  appellant  one  copy  thereof,  at  least  three  days  before 
the  case  is  called  for  hearing.     His  brief  shall  be  of  a  like  character  with 
that  required  of  the  plaintiff  in  error  or  appellant,  except  that  no  specifica- 
tion of  error  shall  be  required,  and  no  statement  of  the  case,  unless  that 
presented  by  the  plaintiff  in  error  or  appellant  is  controverted. 

2d 

3.  The  counsel  for  a  defendant  in  error,  or  an  appellee,  shall  file  with 
the  clerk,  at  least  ten  days  before  the  case  is  called  for  hearing,  ten 
copies  of  his  printed  brief,  one  of  which  shall,  on  application,  be  fur- 
nished to  each  of  the  counsel  on  the  opposite  side.  His  brief  shall  be  of 
a  like  character  with  that  required  of  the  plaintiff  in  error,  or  appellant, 
except  that  no  specification  of  errors  shall  be  required,  and  no  statement 
of  the  case,  unless  that  presented  by  the  plaintiff  in  error,  or  appellant, 
is  controverted. 

f  3d 

3.  At  least  five  days  before  the  case  is  called  for  argument,  the  counsel 
for  the  defendant  in  error  or  appellee  shall  file  with  the  clerk  twenty 


BULKS  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS. 

printed  copies  of  his  brief,  and  give  not  less  than  five  copies  thereof  to 
the  counsel  for  the  plaintiff  in  error  or  appellant.  His  brief  shall  be  of 
a  like  character  with  that  required  of  the  plaintiff  in  error  or  appellant, 
except  that  no  specification  of  errors  shall  be  required,  and  no  statement 
of  the  case  unless  that  presented  by  the  plaintiff  in  error  or  appellant 
is  controverted. 

4th 

3.  The  counsel  for  defendant  in  error,  or  appellee,  shall  file  with  the 
clerk  of  this  court,  at  least  five  days  before  every  term  or  adjourned 
term,  twenty  copies  of  a  printed  brief,  one  of  which  shall  forthwith  be 
furnished  by  the  clerk  to  each  of  the  counsel  of  record  engaged  upon 
the  opposite  side.  His  brief  shall  be  of  a  like  character  with  that  re- 
quired of  the  plaintiff  in  error  or  appellant,  except  no  statement  of  the 
case  shall  be  required,  unless  that  presented  by  the  plaintiff  in  error  or 
appellant  is  controverted. 

6th 

3.  The  counsel  for  defendant  in  error,  appellee  or  respondent  shall  file 
with  the  clerk  of  this  Court,  at  least  five  days  before  the  case  is  called 
for  argument  in  ordinary  cases,  and  before  the  case  is  called  for  argu- 
ment in  preference  cases,  twenty  copies  of  a  printed  brief.  His  brief 
shall  be  of  a  like  character  with  that  required  of  the  plaintiff  in  error, 
appellant  or  petitioner,  except  that  no  specification  of  errors  shall  be 
required  and  no  statement  of  the  case,  unless  that  presented  by  the  plain- 
tiff in  error,  appellant  or  petitioner  is  controverted.  (As  amended  Jan. 
12,  1915.) 

6th 

See  this  circuit,  subd.  3,  rule  20,  above. 

7th 

3.  The  counsel  for  the  defendant  in  error  or  the  appellee  shall  file 
with  the  clerk  twenty  printed  copies  of  his  brief  within  twenty  days 
after  the  filing  of  the  brief  of  the  plaintiff  in  error  or  appellant.  His 
brief  shall  conform  to  the  requirements  of  this  rule  o\< -rpt  that  no  speci- 
fication of  errors  shall  be  required,  and  no  statement  of  the  case,  unless 
that  presented  by  the  plaintiff  in  error  or  appellant  is  controverted. 
Either  party,  at  or  before  the  argument  of  the  cause,  may  file  a  supple- 
mental brief  strictly  confined  to  matter  in  reply  to  the  brief  of  the  oppo- 
site party. 


912  APPENDIX. 

8th 

3.  The  counsel  for  a  defendant  in  error  or  an  appellee  shall  file  with 
the  clerk  twenty  copies  of  his  brief  printed  on  unglazed  paper  and  in 
substantial  conformity  with  the  size  and  type  prescribed  by  rule  26  for 
the  printing  of  records,  at  least  ten  days  before  the  case  is  called  for 
hearing.    His  brief  shall  be  of  a  like  character  with  that  required  of  the 
plaintiff  in  error  or  appellant,  except  that  no  specification  of  errors  shall 
be  required,  and  no  statement  of  the  case,  unless  that  presented  by  the 
plaintiff  in  error  or  appellant  is  controverted. 

24.    SUBDIVISION  4. 
1st       2d       —         5th       —  8th       9th 

4.  When  there  is  no  assignment  of  errors,  as  required  by  §  997  of  the 
Revised  Statutes,  counsel  will  not  be  heard,  except  at  the  request  of  the 
court ;  and  errors  not  specified  according  to  this  rule  will  be  disregarded ; 
but  the  court,  at  its  option,  may  notice  a  plain  error  not  assigned  or 
specified.     (See  rule  11.) 

3d  4th 

In  the  third  and  fourth  circuits,  subdivision  4  is  the  same  as  5  in  the 
first  circuit,  below. 

7th 

4.  When  there  is  no  assignment  of  errors,  as  required  by  §  997  of  the 
Revised  Statutes,  counsel  will  not  be  heard,  except  at  the  request  of  the 
court,  and  errors  not  specified  according  to  this  rule,  and  rule  11,  ante, 
will  be  disregarded ;  but  the  court  at  its  option  may  notice  a  plain  error 
involving  the  merits  of  the  case,  though  not  assigned  or  specified,  and 
though  the  question  be  not  saved  according  to  the  strict  rules  of  practice, 
if  it  be  apparent  of  record  that  the  point  was  contested  and  not  waived 
in  the  court  below. 

24.    SUBDIVISION  5. 
1st        2d  5th  7th        8th        9th 

5.  When,  according  to  this  rule,  the  plaintiff  in  error  or  an  appellant 
is  in  default,  the  case  may  be  dismissed  on  motion ;  and  when  a  defend- 
ant is  in  error  or  an  appellee  is  in  default,  he  will  not  be  heard,  except 
on  consent  of  his  adversary,  and  by  request  of  the  court. 

3d  4th 

The  above  is  subdivision  4  in  the  3d  and  4th  circuits  and  their  sub- 
division 5  is  the  same  as  6  below. 


«ULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      913 

24.    SUBDIVISION  6". 
1st        2d  5th  7th        8th        9th 

6.  When  no  counsel  appears  for  one  of  the  parties  and  no  brief  or 
argument  is  filed  only  one  counsel  will  be  heard  for  the  adverse  party; 
but,  if  a  printed  brief  or  argument  ["has  been"  in  7th  circuit]  is  filed, 
the  adverse  party  will  be  entitled  to  be  heard  by  two  counsel. 

3d— 4th 

In  the  3d  and  4th  circuits  the  above  is  subdivision  5.  In  the  3d  cir- 
cuit there  is  no  subdivision  6,  and  in  4th  circuit,  6  is  as  follows : 

6.  Counsel  for  either  party  may  file  with  the  clerk  of  this  court  twenty 
printed  copies  of  a  reply  brief,  provided  the  same  are  filed  at  least  three 
days  before  the  case  is  reached  in  its  regular  order  on  the  argument 
docket. 

24.    SUBDIVISION  7  (1st  Circuit  Only). 

7.  Every  brief  of  more  than  twenty  pages  shall  contain  on  its  front 
-fly  leaves  a  subject  index  with  page  references,  the  subject  index  to  be 

supplemented  by  a  list  of  all  cases  referred  to,  alphabetically  arranged, 
together  with  references  to  pages  where  the  cases  are  cited.  (Added 
Dec.  14, 1917.) 

6th 
24.    MOTIONS  AND  HEARING  THEREON. 

1.  Motion  shall  be  filed  with  the  clerk  and  shall  contain  a  brief  state- 
ment of  the  facts  and  of  the  objects  of  the  motion,  and  be  accompanied 
by  such  affidavits  as  are  thought  proper. 

6th 

2.  Counsel  making  the  motion  shall  serve  a  copy  thereof  and  of  the 
accompanying  papers  and  a  notice  of  hearing  upon  the  adverse  counsel 
and  also  copy  of  any  bri§f  or  any  argument  to  be  presented  in  support 
of  the  motion.     Such  notice  may  be  for  any  day  after  four  days  from 
the  service.     The  opposing  party  may,  on  or  before  the  day  named  in 
the  notice  or  within  any  extension  of  time  made  by  the  court  or  a  judge 
thereof,  file  counter  showing  or  brief;  and  the  motion  will  then  stand 
submitted,  unless  oral  argument  is  directed.    Except  by  stipulation,  no 
motion  will  be  considered  without  acknowledgment  or  proof  of  §uch 
notice. 

Manual— *• 


914  APPENDIX. 

3.  Upon  motion,  there  will  be  no  oral  argument,  except  leave  of  the 
court  first  obtained ;  and  in  such  case,  the  court  will  fix  the  day  for  hear- 
ing and  the  time  to  be  allowed  for  argument  and  the  clerk  will  notify 
counsel. 

RULE  25  (4  Subdivisions). 
25.    ORAL  ARGUMENTS. 

SUBDIVISION  1. 
1st        2d        3d  6th  7th        8th          9th 

1.  The  plaintiff  in  error  or  appellant  in  this  court  shall  be  entitled  to 
open  and  conclude  the  argument  of  the  case.    But  when  there  are  cross-' 
appeals  they  shall  be  argued  together  as  one  case,  and  the  plaintiff  in  the 
court  below  shall  be  entitled  to  open  and  conclude  the  argument. 

4th 

Same  as  in  1st  circuit,  with  the  following  added:  "Where  there  are 
cross  writs  of  error  the  court  may  direct  that  they  be  argued  together. 
In  such  event  the  plaintiff  in  the  court  below  shall  be  entitled  to  open 
and  conclude  the  argument." 

6th 

In  the  6th  circuit  this  numbered  rule  is  called  "Opinions"  and  is  given 
after  subdivision  3  below.  Rule  23  above,  in  6th  circuit,  deals  with 
"Oral  Arguments." 

25.     SUBDIVISION  2. 
1st        2d        8d        4th        5th  8th        9th 

2.  Only  two  counsel  will  be  heard  for  each  party  on  the  argument  of  a 
case. 

6th 
See  rule  23,  this  circuit,  as  to  "Oral  Arguments." 

25.    SUBDIVISION  3. 
1st        3d        4th        '    7th        8th       

3.  Two  hours  ["one  hour  and  fifteen  minutes,"  8th  circuit]  on  each 
side  will  be  allowed  for  the  argument,  and  no  more,  without  special  leave 
of  the  court,  granted  before  the  argument  begins.     The  time  thus  al- 
lowed may  be  apportioned  between  the  counsel  on  the  same  side  at  their 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  AI'l'KAl.s.      915 

discretion,  provided,  always,  that  a  fair  opening  of  the  case  shall  be  inada 
by  the  party  having  the  opening  and  closing  arguments. 

2d 

3.  Upon  appeals  from  orders  granting  or  refusing  a  preliminary  in- 
junction or  appointing  a  receiver,  and  upon  appeals  and  petitions  to 
revise  in  bankruptcy,  one  half  hour  on  each  side,  upon  writs  of  error 
three  quarters  of  an  hour  on  each  side,  and  in  other  cases  one  hour  on 
each  side  will  be  allowed.  But  in  all  cases  where  there  are  no  difficult 
questions  of  law  and  the  amount  involved  does  not  exceed  $500  only  one 
half  hour  on  each  side  will  be  allowed.  No  more  time  than  abovijspeci- 
fied  will  be  allowed  without  special  leave  of  the  court  granted  before  the 
argument  begins.  The  time  thus  allowed  may  be  apiwrtioned  between 
the  counsel  on  the  same  side  at  their  discretion,  provided  always  that  a 
fair  opening  of  the  case  shall  be  made  by  the  party  having  the  opening 
and  closing  argument. 

5th 

3.  One  hour  will  be  allowed  for  the  plaintiff  in  error  or  appellant  to 
open  and  present  his  case,  and  one  hour  will  be  allowed  to  the  defendant 
in  error  or  appellee  to  answer;  thirty  minutes  will  then  be  allowed  to 
the  plaintiff  in  error  or  appellant  to  reply.  No  more  time  will  be  allowed 
for  argument  without  special  leave  of  the  court.  (As  amended  Feb.  27, 
1894.) 

6th 

See  rule  23,  this  circuit,  below. 

9th 

3.  One  hour  on  each  side  will  be  allowed  for  the  argument,  and  no 
more,  without  special  leave  of  the  court,  granted  before  the  argument 
begins.    The  time  thus  allowed  may  be  apportioned  between  the  counsel 
on  the  same  side  at  their  discretion ;  provided,  always,  that  a  fair  open- 
ing of  the  case  shall  be  made  by  the  party  having  the  opening  and  closing 
arguments, 

25.    SUBDIVISION  4  (7th  and  9th  Circuits  only). 

7th 

4.  Reading  at  length  from  briefs  or  reported  cases  shall  not  be  in- 
dulged. 


916  APPENDIX. 

9th 

4.  Any  case  entitled  to  be  heard  at  any  term  or  session  of  the  court 
may  be  submitted  by  either  or  both  of  the  parties  on  briefs.  Consent  to 
submit  a  case  on  briefs  may  be  filed  at  any  time  prior  to,  or  at  the  time 
the  case  is  reached  for  hearing.  (To  this  rule  was  added  the  following 
note  :  See  Rules  35  and  36.) 

6th 
25.    OPINIONS. 

1.  All  opinions  delivered  by  the  court  will  immediately  upon  the  de- 
livery thereof,  be  handed  to  the  clerk  to  be  recorded. 

2.  The  clerk  shall  cause  to  be  printed  any  manuscript  opinion  filed 
with  him.    An  opinion  printed  under  the  supervision  of  the  clerk  or  a 
judge,  need  not  be  copied  into  a  book  of  records  ;  but  at  the  end  of  each 
term  the  clerk  shall  cause  such  printed  opinion  to  be  bound  in  a  substan- 
tial manner  into  one  or  more  volumes,  and  when  so  bound  they  shall  be 
deemed  to  have  been  recorded  within  the  meaning  of  this  rule. 

Provisions  governing  "Oral  Arguments"  in  the  6th  circuit  are  con- 
tained in  rule  23,  for  that  circuit,  above. 

RULE  26. 


26.    FORM  OP  PRINTED  RECORDS,  ARGUMENTS  AND  BRIEFS. 
All  records,  arguments,  and  briefs,  printed  for  the  use  of  the  court, 
must  be  in  such  form  and  size  that  they  can  be  conveniently  bound  to- 
gether, so  as  to  make  an  ordinary  octavo  volume. 

2d 

All  arguments  and  briefs  printed  for  the  use  of  the  court  must  be 
printed  upon  a  page  eleven  inches  long  by  seven  inches  wide  and  must 
have  a  margin  of  at  least  two  inches  in  width.  (As  amended  Dec.  7, 
1899.) 

3d 
26.    OPINIONS  OF  THE  COURT. 

1.  All  written  opinions  delivered  by  the  court  shall  be  filed  by  the 
clerk. 

4th 

26.    FORMS  OF  PRINTED  RECORD,  ARGUMENTS,  AND  BRIEFS. 

All  transcripts  of  record,  addenda  thereto,  arguments  and  briefs  printed 

•for  the  use  of  this  court  shall  be  in  small  pica  type,  24  pica  "ems"  to  a 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COUBTS  OP  APPEALS.      917 

f  line,  on  unglazed  paper,  with  an  index,  and  a  suitable  cover  containing 
the  title  of  the  court,  the  cause,  and  the  court  from  which  the  case  is 
brought  into  this  court,  and  the  number  of  the  case.  Size  of  pages  to  be 
914  *  6%  inches,  except  that  in  patent  cases  the  size  of  the  pages  shall 
be  10%  x  7%  inches;  that  is  to  say,  large'  enough  to  bind  in  copies  of 
Patent  Office  drawings  and  specifications  without  folding.  So  much  of 
the  record  as  was  printed  in  the  court  below  may  be  used  in  this  court 
if  it  conform  to  this  role. 

5th 
26.    FORM  OP  PRINTED  ARGUMENTS  AND  BRIEFS. 

| 

All  records,  arguments  and  briefs  printed  for  the  use  of  the  court  must 
be  in  such  form  and  size  that  they  can  be  conveniently  bound  together 
so  as  to  make  an  ordinary  octavo  volume;  and,  as  well  as  all  quotations 
contained  therein,  and  the  covers  thereof,  must  be  printed  in  clear  type 
(never  smaller  than  small  pica)  and  on  unglazed  paper.  (Promulgated 
March  21, 1911.) 

6th 
26.    INTEREST  AND  DAMAGES. 

1.  Where  a  judgment  or  decree  of  the  district  court  at  law,  in  equity, 
bankruptcy,  or  admiralty,  requiring  the  payment  of  money,  is  affirmed 
by  this  court,  interest  thereon  from  its  date  and  until  payment  shall  be 
calculated  and  levied  at  the  same  rate  borne  by  similar  judgments  or  de- 
crees in  the  courts  of  the  state  where  such  district  court  sits. 

2.  Where,  in  any  such  case  the  review  in  this  court  has  delayed  pro- 
ceedings to  collect  the  award  in  the  district  court,  and  shall  appear  to 
this  court  to  have  been  had  or  prosecuted  merely  for  delay,  damages  at 
a  rate  not  exceeding  ten  per  cent  of  the  award,  and  in  addition  to  in- 
terest may  be  imposed  by  this  court. 

7th 
26.    OPINIONS  OF  THE  COURT. 

1.  All  opinions  delivered  by  the  court  shall,  immediately  upon  the  de- 
livery thereof,  be  handed  to  the  clerk  to  be  recorded. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of 
this  court  for  preservation. 

3.  Opinions  printed  under  the  supervision  of  the  judge  delivering  thr 
same  need  not  be  copied  by  the  clerk  into  a  book  of  r<-.-<>r.!<.  hut,  at  the 
end  of  each  term,  the  clerk  shall  cause  such  printed  opinions  to  be  bound 
in  a  substantial  manner  into  one  or  more  volumes,  and  when  so  bouml 


918  APPENDIX, 

they  shall  be  deemed  to  have  been  recorded  within  the  meaning  of  this 
rule. 

8th 
26.    FORM  OF  PRINTED  RECORDS,  ARGUMENTS  AND  BRIEFS. 

1.  All  transcripts  of  record,  arguments  and  briefs  for  the  use  of  this 
court,  except  in  patent  causes  as  hereinafter  provided,  shall  be  printed 
on  unglazed  paper  not  less  than  6*4  inches  in  width  x  9^  inches  in 
length,  including  a  sufficient  margin  so  that  they  can  be  conveniently 
trimmed  and  bound  in  volumes.     The  paper  should  equal  a  weight  of 
eighty  pounds  per  ream  on  basis  of  size  of  sheet  25x38  inches. 

2.  All  records  and  briefs  in  patent  causes  may  be  printed  on  unglazed 
paper,  of  the  weight,  as  provided  in  §  1  of  this  rule,  of  such  size  that 
copies  of  letters  patent  may  be  inserted  therein  without  folding,  but  the 
size  of  such  records  and  briefs  in  patent  causes  shall  not  be  less  than 
Ty%  inches  wide  and  9^  inches  long,  so  that  the  records  and  briefs  can 
be  conveniently  trimmed  and  bound  in  volumes. 

3.  All  records,  briefs,  supplemental  transcripts  and  returns  to  writs 
of  certiorari  shall  be  printed  in  clear  11-point  or  small  pica  type  (never 
smaller  than  10-point)  of  26  pica  or  28  small  pica  ems  to  a  line,  and  52 
lines,  including  running  head,  solid,  per  printed  page,  containing  substan- 
tially 1,400  small  pica  ems.     Where  testimony  or  deposition  by  question 
and  answer  are  printed,  the  answer  shall  follow  on  the  same  line  as  ques- 
tion whenever  the  same  can  be  done. 

4.  All  indexes  to  records  and  tabular  exhibits,  which  from  their  nature 
require  smaller  type  may  be  printed  in  8-point,  or  brevier  type. 

5.  All  covers  for  records  shall  be  printed  in  a  neat  and  workmanlike 
manner  on  substantial  paper  equal  to  a  weight  of  96  pounds  per  ream 
on  the  basis  of  a  sheet  25x40  inches,  and  shall  contain  in  conspicuous 
type  the  following  matter,  viz. : 

First. 

TRANSCRIPT  OF  RECORD. 
Second. 

UNITED  STATES  CIRCUIT  COURT  OP  APPEALS  EIGHTH  CIRCUIT. 

Third.  The  abbreviation  for  number  "No."  followed  by  a  blank  line 
%  of  an  inch  in  length. 

Fourth.  The  title  of  the  cause  as  it  will  be  docketed  in  this  court, 

viz.:  ,  Appellant  (or  Plaintiff  in  Error),  as  the  case  may  be,  vs. 

,  Appellee  (or  Defendant  in  Error). 

Fifth.  The  words  "In  Error  to"  (or  "Appeal  from")  as  the  nature  of 
the  case  may  require,  followed  by  the  correct  title  of  the  trial  court. 


RULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      919 

6.  Unless  otherwise  expressly  directed  by  counsel,  the  full  titles  of  the 
*  court  and  cause  once  correctly  shown  in  the  printed  transcript  shall  not 
be  repeated  when  unchanged.  There  shall  be  placed  at  the  head  of  each 
subsequent  pleading,  etc.,  a  brief  designation  of  its  character. 

Unless  otherwise  expressly  directed  by  counsel,  the  indorsements  on 
pleadings,  etc.,  shall  not  be  printed  in  full ;  it  shall  be  sufficient  to  print : 

"Filed  in  the Court  on ,"  giving  the  correct  date  and  name  of 

the  court. 

The  date  of  all  orders  and  decrees  and  the  name  of  the  judge  or  judges 
making  them  shall  always  appear. 

In  printed  transcripts  the  pleadings,  orders,  testimony  of  witnesses, 
etc.,  shall  be  separated  by  a  face  rule  three  inches  long.  The  clerk  shall 
indicate  to  the  printer  the  appropriate  places  therefor. 

When  inserts  are  folded  several  times  to  conform  to  the  size  of  the 
printed  record,  stubs  should  be  inserted  at  the  binding  side  of  the  record 
to  equalize  the  space  occupied  by  the  folds.  Unmounted  photographs 
should  be  used  when  copies  of  such  are  required  in  printed  records. 

As  this  rule  is  intended  primarily  for  the  guidance  of  the  printer  his 
attention  should  be  directed  thereto  before  the  record  or  brief  is  printed. 

A  sample  copy  of  a  printed  record  will  be  furnished  by  the  clerk  of 
this  court  on  application  therefor. 

Records  and  briefs  not  printed  in  substantial  conformity  with  the  pro- 
visions of  this  rule  will  not  be  accepted  or  filed. 

9th 

26.    FORM  OF  PRINTED  RECORDS,  ARGUMENTS,  BRIEFS,  AND 
PETITIONS  FOR  REHEARING. 

1.  All  records  printed  for  the  nse  of  the  court  must  be  printed  on  un- 
glazed  paper,  9*4  inches  long  and  6*4  inches  wide.    The  printed  page, 
exclusive  of  any  marginal  note,  reference  or  running  head,  must  be  7 
inches  long  and  4  inches  wide,  excepting  in  patent  cases  where  counsel 
furnish  to  the  clerk  at  the  time  of  docketing  the  cause  patent  office  draw- 
ings and  specifications  for  insertion.    In  such  cases  the  margin  of  the 
record  may  be  sufficiently  enlarged  to  accommodate  such  drawings  and 
specifications.     The   record   must   be   properly    indexed.    Pica   double- 
leaded  is  the  only  mode  of  composition  allowed. 

2.  All  arguments,  briefs  and  petitions  for  rehearing,  printed  for  the 
use  of  the  court,  must  be  printed  on  unruled  white  writing  paper,  9*4 
inches  long  and  6*4  inches  wide.    The  printed  page,  exclusive  of  any 
marginal  note,  reference  or  running  head,  must  be  7  inches  long  and 
4  inches  wide.    Pica  double  leaded  is  the  only  mode  of  composition 
allowed. 


920  APPENDIX. 

RULE  27. 
1st       2d       5th       - —       9th 

27.    COPIES  OF  RECORDS  AND  BRIEFS. 

The  clerk  shall  carefully  preserve  in  his  office  one  copy  of  a  printed 
record  in  every  case  submitted  to  the  court  for  its  consideration  and  of 
all  printed  motions,  briefs,  and  arguments  filed  therein. 

3d. 

27.    REHEARING. 

1.  A  petition  for  rehearing  a  cause  may  be  filed  with  the  clerk  at  any 
time  within  thirty  days  after  the  entry  therein  of  the  final  judgment  or 
final  decree  of  this  court,  and,  if  the  term  within  which  such  judgment 
or  decree  shall  have  been  entered  shall  expire  during  said  period  of 
thirty  days,  the  judgment  or  decree,  and  the  record  on  which  the  same 
shall  have  been  entered,  shall  nevertheless  remain  subject  to  the  control 
of  this  court  until  the  full  expiration  of  the  time  herein  allowed  for  the 
filing  of  the  petition;  Provided,  however,  that  no  such  petition  shall  be 
filed  after  this  court,  by  any  order  made  within  said  period  of  thirty 
days,  shall  have  directed  the  immediate  issue  of  a  mandate  or  other  pro- 
cess in  the  nature  of  a  procedendo  (see  rule  30).  The  petition  shall  be 
printed,  shall  briefly  and  distinctly  state  the  reasons  for  a  rehearing,  and 
shall  be  supported  by  the  certificate  of  counsel. 

4th 

27.    COPIES  OF  RECORDS  AND  BRIEFS. 

The  clerk  shall  cause  to  be  bound  two  copies  of  the  printed  record  in 
every  case,  and  of  all  printed  motions,  briefs  and  arguments  filed  there- 
in ;  one  copy  to  be  carefully  preserved  in  his  office,  and  one  copy  for  the 
use  of  the  court  library.  The  cost  of  the  same  to  be  paid  for  by  the 
clerk  out  of  the  revenues  of  his  office. 

.=;  :*•*••  6th 

27.    COSTS. 

1.  Where  any  case  shall  be  dismissed  out  of  this  court  for  lack  of 
jurisdiction  herein,  only  such  costs  as  are  incidental  to  hearing  and  de- 
termining the  question  of  jurisdiction  will  be  awarded;  in  all  other  cases 
(except  when  provided  by  statute  or  general  rule)  upon  the  final  disposi- 
tion of  a  proceeding  in  this  court  costs  will  be  awarded  to  the  party  here 
prevailing,  unless  the  court,  by  a  special  direction,  denies,  otherwise 
awards  or  apportions  the  costs. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      921 

2.  In  rases  to  which  the  United  States  is  a  party,  no  costs  in  this  court 
will  be  awarded. 

3.  In  denying  or  apportioning  costs  under  clause  1,  the  court  will  en- 
force, as  far  as  possible,  the  duty  of  each  party  to  confine  within  the 
limits  prescribed  by  rules  10  and  15  the  bill  of  exception,  statement  of 
evidence,  and  transcript. 

4.  The  cost  of  stenographers'  transcripts  of  testimony  used  in  settling 
a  bill  of  exceptions,  or  a  statement  of  evidence,  will  not  be  taxed  in  this 
court,  but  shall  be  awarded  and  taxed  by  the  court  below  after  mandate, 
as  this  court  may  direct,  or  lacking  such  direction  as  to  that  court  shall 
seem  proper. 

5.  When  costs  are  allowed  it  shall  be  the  duty  of  the  clerk  to  insert 
the  amount  thereof  in  the  body  of  the  mandate  or  other  process  sent  to 
the  court  below,  and  annex  to  the  same  a  bill  of  items  taxed  in  detail. 

6.  The  proper  fees  of  the  clerk  therefor  shall  be  paid  before  any  tran- 
script of  the  record  in  any  case  shall  be  transmitted  to  the  Supreme 
Court. 

TABLE  OF  COSTS. 

Order  Promulgated  by  the  Supreme  Court  of  the  United  States 
February  28, 1898. 

Ordered,  In  pursuance  of  the  Act  of  Congress  of  February  19,  1897 
(29  Stats.  536,  c.  263),  that  the  following  table  of  fees  and  costs  in  the 
circuit  courts  of  appeals  be,  and  the  same  is  hereby,  established,  to  take 
effect  on  the  first  day  of  March,  A.  D.  1898,  and  no  other  fees  and  costs 
than  those  therein  named  shall  thereafter  be  charged: 

Docketing  a  case  and  filing  the  record $  5  00 

Entering  an  appearance   

Transferring  a  case  to  the  printed  calendar 1  00 

Entering  a  continuance 25 

Filing  a  motion,  order  or  other  paper 

Entering   any   rule,   or  making  or  copying  any   record  or  other 

paper,  for  each  one  hundred  words 20 

Entering  a  judgment  or  decree  1  00 

Every  search  of  the  records  of  the  court  and  certifying  the  same. .     1  00 

Affixing  a  certificate  and  a  seal  to  any  paper 1  00 

Receiving,  keeping  and  paying  money  in  pursuance  of  any  statute 
or  order  of  court,  one  per  cent  on  the  amount  so  received, 
kept  and  paid. 

Preparing  the  record  for  the  printer,  indexing  the  same,  supervis- 
ing the  printing  and  distributing  the  copies,  for  each  printed 
page  of  the  record  and  index 


922  APPENDIX. 

Making  a  manuscript  copy  of  the  record,  when  required  by  the 
rules,  for  each  one  hundred  words  (but  nothing  in  addition 
for  supervising  the  printing)  20 

Issuing  a  writ  of  error  and  accompanying  papers,  or  a  mandate 

or  other  process  5  00 

Filing  briefs,  for  each  party  appearing 5  00 

Copy  of  an  opinion  of  the  court,  certified  under  seal,  for  each 
printed  page  (but  not  to  exceed  five  dollars  in  the  whole  for 
any  copy)  1  00 

Attorneys'  docket  fee 20  00 

7th 

27.    REHEARING. 

A  petition  for  rehearing  must  be  filed  within  thirty  days  after  entry 
of  judgment  or  decree,  or  after  filing  of  the  opinion,  shall  be  in  print, 
and  be  served  forthwith  by  copy  upon  the  opposing  party,  who,  within 
twenty  days  from  such  service,  may  file  a  printed  answer,  and  the  peti- 
tion shall  be  determined  without  oral  arguments,  unless  otherwise*  or- 
dered. If  a  petition  be  not  filed  within  the  time  allowed,  and  upon  the 
overruling  of  a  petition,  the  clerk  shall,  without  special  order,  issue  the 
mandate  of  the  court  to  the  court  below.  Twenty  copies  of  such  petition 
or  answer  shall  be  filed  with  the  clerk  of  this  court. 

8th 

27.    COPIES  OF  RECORDS  AND  BRIEFS. 

The  clerk  shall  cause  to  be  bound  in  volumes  in  a  substantial  manner 
and  shall  carefully  preserve  in  his  office  one  copy  of  the  printed  record 
in  every  case  submitted  to  the  court  for  its  consideration,  and  of  all 
printed  motions,  briefs,  and  arguments  filed  therein. 

RULE  28. 

1st       2d       5th       8th       

28.    OPINIONS  OF  THE  COURT. 

1.  All  opinions  delivered  by  the  court  shall,  immediately  upon  the  de- 
livery thereof,  be  handed  to  the  clerk  to  be  recorded. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of 
this  court  for  preservation. 

3.  [This   subdivision   in    8th    circuit   immediately   below.]     Opinions 
printed  under  the  supervision  of  the  judge  delivering  the  same  need  not 
be  copied  by  the  clerk  into  a  book  of  records;  but,  at  the  end  of  each 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  09  APPEALS.      923 

term,  the  clerk  shall  cause  such  printed  opinions  to  be  bound  in  a  «ub- 
stantial  manner  into  one  or  more  volumes,  and  when  so  bound  they  shall 
be  deemed  to  have  been  recorded  within  the  meaning  of  this  rule.  • 

8th 

3.  Opinions  printed  or  prepared  under  the  supervision  of  the  judge 
delivering  the  same  need  not  be  copied  by  the  clerk  into  a  book  of  rec- 
ords; but,  at  the  end  of  each  term,  the  clerk  shall  cause  such  printed 
or  original  opinions  to  be  bound  in  a  substantial  manner  into  one  or 
more  volumes,  and  when  so  bound  they  shall  be  deemed  to  have  been 
recorded,  within  the  meaning  of  this  rule. 

28.    INTEREST. 
3d 

[Rule  on  "Opinions'  is  rule  26  in  3d  circuit.] 

1.  In  cases  where  a  writ  of  error  is  prosecuted  in  this  court,  and  the 
judgment  of  the  inferior  court  is  affirmed,  the  interest  shall  be  calcu- 
lated and  levied,  from  the  date  of  the  judgment  below  until  the  same  is 
paid,  at  the  same  rate  that  similar  judgments  bear  interest  in  the  courts 
of  the  state  where  such  judgment  was  rendered. 

2.  In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings  on 
the  judgment  of  the  inferior  court,  and  shall  appear  to  have  been  sued 
out  merely  for  delay,  damages  at  a  rate  not  exceeding  ten  pW  cent,  in 
addition  to  interest,  shall  be  awarded  upon  the  amount  of  the  jmli^nent. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of  money 
in  cases  in  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  in  admiralty,  damages  and  interest  may  be  allowed,  if 
specially  directed  by  the  court. 

4th 
28.    OPINIONS  OF  THE  COURT. 

1.  All  opinions  delivered  by  the  court  shall  be  printed  under  the 
supervision  of  the  judge  delivering  the  same,  or  of  one  of  the  circuit 
judges,  the  cost  of  such  printing  to  be  paid  by  the  clerk  out  of  the 
revenues  of  his  office  and  charged  to  the  litigants  in  the  rcsi>ective  cases, 
to  be  taxed  and  allowed  as  other  costs. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of 
this  court  for  preservation. 

3.  The  clerk  of  this  court  shall  from  time  to  time  canse  two  sets  of 
the  printed  opinions  of  this  court  to  be  bound  in  a  substantial  manner 


924  APPENDIX. 

into  volumes,  one  set  to  be  kept  in  the  clerk's  office  and  one,  set  to  be 
kept  in  the  court  library. 

6th 
28.    REHEARINGS. 

A  petition  for  rehearing  after  judgment  can  be  presented  only  within 
thirty  days  (at  the  same  or  succeeding  term)  after  the  day  when  the 
printed  opinion  of  the  court  is  filed,  and  can  be  obtained  by  counsel  for 
the  parties  (which  date  the  clerk  will  note  upon  the  docket),  unless  by 
special  leave  granted  during  such  thirty  days  by  the  court  or  a  judjje 
thereof,  and  must  be  printed,  and  briefly  and  distinctly  state  its  grounds, 
and  be  supported  by  certificate  of  counsel,  and  will  not  be  granted,  or 
permitted  to  be  argued,  unless  a  judge  who  concurred  in  the  judgment 
desires  it  and  a  maj6rity  of  the  court  so  determines. 

[Rule  on  "Opinions"  is  rule  25  in  6th  circuit.] 

7th 
28.    INTEREST. 

1.  When  a  judgment  for  the  payment  of  money  is  affirmed  by  this 
court,  the  interest  thereon  shall  be  calculated  and  levied  from  the  date 
of  the  judgment  below  until  the  same  is  paid,  and  at  the  same  rate  that 
similar  judgments  bear  interest  in  the  courts  of  the  state  where  such 
judgment  was  rendered. 

2.  In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings  on 
the  judgment  of  the  inferior  court,  and  shall  appear  to  have  been  sued 
out  merely  for  delay,  damages  at  a  rate  not  exceeding  ten  per  cent,  in 
addition  to  interest,  shall  be  awarded  on  the  amount  of  the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of  money 
in  cases  in  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  in  admiralty,  damages  and  interest  may  be  allowed,  if 
specially  directed  by  the  court. 

5.  In  cases  where  money  is  paid  into  court,  any  party  interested  may 
move  for  an  order  that  the  clerk  deposit  the  same  under  the  direction 
of  the  court.     On  deposits  so  made,  the  clerk  shall  account  for  such 
interest  as  he  may  have  collected  on  the  fund. 

9th 

28.    OPINIONS  OF  THE  COURT. 

The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of  this 
court  for  preservation,  and  when  so  filed  the  same  shall  be  deemed  to 
have  been  recorded  within  the  meaning  of  this  rule. 


•  BULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      925 

RULE  29. 

29.    REHEARING. 

A  petition  for  a  rehearing  after  judgment  may  be  filed  at  the  term 
at  which  the  judgment  is  entered,  and  within  one  calendar  mouth  after 
such  entry,  and  not  later  unless  by  leave  granted  during  the  term.  It  must 
be  in  print,  in  the  form  and  style  required  by  rule  26,  and  it  must  briefly 
and  distinctly  state  its  grounds,  and  be  supported  by  a  certificate  of 
counsel.  It  will  not  be  granted,  or  permitted  to  be  argued,  unless  a 
judge  who  concurred  in  the  judgment  desires  it  and  a  majority  of  the 
court  so  determines.  Provided,  Whenever  a  judgment  is  entered  within 
less  than  a  month  before  the  term  adjourns,  the  petition  may  be  filed 
within  a  month  after  the  entry  of  judgment,  and  with  the  same  effect 
after  the  term  as  though  filed  before  the  adjournment.  (As  amended 
Oct.  4, 1898.) 

2d 

29.    REHEARING. 

A  petition  for  rehearing  after  judgment  can  be  presented  only  at  the 
term  at  which  judgment  is  entered,  unless  by  special  leave  granted  dur- 
ing the  term;  and  must  be  printed  and  briefly  and  distinctly  state  its 
grounds,  and  be  supported  by  certificate  of  counsel;  and  will  not  be 
granted,  or  permitted  to  be  argued,  unless  a  judge  who  concurred  in  the 
judgment  desires  it,  and  a  majority  of  the  court  so  determines. 

3d 

29.    COSTS. 

1.  In  all  cases  where  any  suit  shall  be  dismissed  in  this  court,  except 
where  the  dismissal  shall  be  for  want  of  jurisdiction,  costs  shall  be  al- 
lowed to  the  defendant  in  error  or  appellee,  unless  otherwise  agreed  by 
the  parties. 

2.  In  all  cases  of  affirmance  of  any  judgment  or  decree  in  this  court, 
costs  shall  be  allowed  to  the  defendant  in  error  or  appellee  unless  other- 
wise ordered  by  the  court. 

3.  In  cases  of  reversal  of  any  judgment  or  decree  in  this  court,  costs 
shall  be  allowed  to  the  plaintiff  in  error  or  appellant,  unless  otherwise 
ordered  by  the  court.     The  cost  of  transcript  of  record  from  the  court 
below  shall  be  taxable  in  that  court  as  costs  in  the  case. 


926  APPENDIX. 

4.  Neither  of  the  foregoing  sections  shall  apply  to  cases  where  the 
United  States  are  a  party ;  but  in  such  cases  no  costs  shall  be  allowed  in 
this  cojurt  for  or  against  the  United  States. 

5.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the 
clerk  to  insert  the  amount  thereof  in  the  body  of  the  mandate,  or  other 
proper  process  sent  to  the  court  below  and  annexed  to  the  same,  the 
bill  of  items  taxed  in  detail. 

6.  In  all  cases  certified  to  the  Supreme  Court  or  removed  thereto  by 
certiorari  or  otherwise,  the  fees  of  the  clerk  of  this  court  shall  be  paid 
before  a  transcript  of  the  record  shall  be  transmitted  to  the  Supreme 
Court. 

7.  In  pursuance  of  the  act  of  Congress  of  February  19, 1897  (29  Stats. 
536,  c.  263),  and  of  the  order  of  the  Supreme  Court  of  January  10,  1898, 
as  amended  February  28,  1898  (90  Fed.  Rep.  clxxi),  the  following  table 
of  fees  and  costs  is  established  for  this  court:   [This  table  is  set  out 
above  under  6th  circuit,  rule  27,  subd.  6.] 

4th 

29.    REHEARING. 

A  petition  for  rehearing  can  be  presented  only  within  thirty  days  after 
judgment  is  entered,  unless  by  special  leave  granted  before  the  expira- 
tion of  said  30  days;  and  must  be  printed  and  briefly  and  distinctly 
state  its  grounds,  and  be  supported  by  its  certificate  of  counsel;  and 
will  not  be  granted,  or  permitted  to  be  argued,  unless  judge  who  con- 
curred in  the  judgment  desires  it,  and  the  majority  of  the  court  so  de- 
termine. But  such  petition  shall  not  operate  to  stay  the  mandate  or 
other  process  provided  for  in  rule  32,  except  by  special  order  of  the 
court. 

5th 
29.    REHEARING. 

A  petition  for  a  rehearing  after  judgment  can  be  presented  only  dur- 
ing the  term  at  which  judgment  is  entered,  and  within  twenty  days  after 
such  entry,  unless  by  special  leave  granted  by  the  Court,  or  one  of  the 
judges,  and  must  be  printed  and  briefly  and  distinctly  state  its  grounds 
without  argument,  and  be  supported  by  certificate  of  counsel;  and  will 
not  be  granted  or  permitted  to  be  argued  unless  a  judge  who  concurred 
in  the  judgment  desii-es  it  and  a  majority  of  the  Court  so  determines.  (As 
amended  Jan.  12,  1905.) 


RULES  OF  THE  UNITED  STATES  CIBCU1T  COURTS  OK  Afl'KALflL      927 

6th 
29.    MANDATE. 

In  all  cases  finally  determined  in  this  court,  a  mandate,  or  other  pro- 
cess in  the  nature  of  a  procedendo,  shall  be  issued  to  the  court  below, 
for  the  purpose  of  informing  such  court  of  the  proceedings  in  this  court, 
so  that  further  proceedings  may  be  had  in  such  court  as  to  law  and  jus- 
tice may  appertain. 

Such  mandate  shall  not  issue  until  time  has  elapsed  for  filing  a  peti- 
tion to  rehear,  as  defined  by  rule  28;  and  no  mandate  or  other  process 
of  procedendo  shall  issue  when  a  petition  to  rehear  is  pending,  unless 
specially  ordered. 

Every  mandate  shall  be  accompanied  by  a  copy  of  the  opinion  filed  in 
the  cause  in  which  it  is  issued,  and  the  charge  for  the  same  shall  be 
taxed  in  the  costs  of  the  case. 

In  cases  not  requiring  special  form  of  process,  the  mandate  (unless 
otherwise  directed  by  the  court  or  a  judge  thereof)  shall  be  issued  by 
the  cleric  upon  the  expiration  of  time  for  filing  rehearing  petition,  or 
upon  the  denial  of  such  petition,  and  as  well  in  vacation  as  in  term  time. 

7th 

29.    COSTS. 

1.  When  any  suit  shall  be  dismissed  in  this  court,  except  for  want  of 
jurisdiction,  costs  shall  be  allowed  to  the  defendant  in  error  or  appellee, 
unless  otherwise  agreed  by  the  parties. 

2.  In  every  case  of  a  judgment  or  decree  affirmed  in  this  court  costs 
shall  be  allowed  to  the  defendant  in  error  or  appellee  unless  otherwise 
ordered  by  the  court. 

3.  In  every  case  of  reversal  of  a  judgment  or  decree  in  this  court  costs 
shall  be  allowed  to  the  plaintiff  in  error  or  appellant  unless  otherwise 
ordered  by  the  court.    The  costs  of  the  transcript  of  the  record  from  the 
court  below  shall  be  taxable  in  that  court  as  costs  in  the  case. 

4.  No  costs  shall  be  allowed  in  this  court  for  or  against  the  United 
States. 

5.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the 
clerk  to  insert  the  amount  thereof  in  the  body  of  the  mandate,  or  other 
proper  process,  sent  to  the  court  below,  directing  to  award  execution 
thereupon  and  to  annex  to  the  same  the  bill  of  items  taxed  in  detail. 

6.  In  all  cases  certified  to  the  Supreme  Court  or  n-rnovcd  thereto  by 
certiorari  or  otherwise,  the  fees  of  the  clerk  of  this  court  shall  be  paid 
before  a  transcript  of  the  record  shall  be  transmitted  to  th«  Supreme 
Court. 


928  APPENDIX. 

7.  The  fees  of  the  clerk  of  this  court,  as  prescribed  by  order  of  the 
Supreme  Court,  made  February  28,  1898,  are  as  follows:  [This  table  is 
set  out  above  under  6th  circuit,  rule  27,  subd.  6.] 

8th 
29.    REHEARING. 

1.  A  petition  for  rehearing  may  be  presented  and  filed  within  sixty 
days  after  the  date  of  the  judgment  or  decree,  and  jurisdiction  to  hear 
and  decide  the  question  presented,  thereby  is  reserved,  notwithstanding 
the  lapse  of  the  term  within  the  sixty  days. 

2.  Such   petition   for   hearing  must   be   printed   and   twenty   copies 
thereof  filed  with  the  clerk  and  must  briefly  and  distinctly  state  its 
grounds  and  be  supported  by  a  certificate  of  counsel,  and  will  not  be 
granted  or  permitted  to  be  argued  unless  the  judge  who  concurred  in 
the  judgment  desires  it,  and  a  majority  of  the  court  so  determines. 

9th 

29.    REHEARING. 

A  petition  for  rehearing  may  be  presented  within  thirty  days  after 
judgment.  It  must  be  printed,  and  briefly  and  distinctly  state  its 
grounds,  and  be  supported  by  certificate  of  counsel  that  in  his  judgment 
it  is  well  founded,  and  that  it  is  not  interposed  for  delay.  Twenty 
printed  copies  must  be  filed  with  the  clerk.  See,  also,  subdivision  2  of 
rule  26  and  rule  32.) 

RULE  30. 

1st        2d  4th        5th  8th        9th 

30.    INTEREST. 

1.  In  cases  where  a  writ  of  error  is  prosecuted  in  this  court  and  the 
judgment  of  the  inferior  court  is  affirmed,  the  interest  shall  be  calcu- 
lated and  levied,  from  the  date  of  the  judgment  below  until  the  same  is 
paid,  at  the  same  rate  that  similar  judgments  bear  interest  in  the  courts 
of  the  state  or  territory1  where  such  judgment  was  rendered. 

2.  In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings  on 
the  judgment  of  the  inferior  court,  and  shall  appear  to  have  been  sued 
out  merely  for  delay,  damages  at  a  rate  not  exceeding  ten  per  cent,  in 
addition  to  interest,  shall  be  awarded  upon  the  amount  of  the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of  money 
in  cases  of2  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  of2  admiralty  damages  and  interest  may  be  allowed,  if 
specially  directed  by  the  court. 

1  In  the  4th  circuit  the  words  "or  territory"  are  omitted. 

2  Substitute  "in"  for  "of"  in  8th  circuit. 


BULKS  OF  THE  UNITED  STATES  CIRCUIT  COUKT8  OF  APPEALS. 

3d 

30.    MANDATE. 

1.  In  each  case  finally  determined  in  this  court,  a  mandate  or  other 
proper  process  in  the  nature  of  a  procedendo  shall  be  issued  to  the  court 
below,  for  the  purpose  of  informing  such  court  of  the  proceeding's  in 
this  court  so  that  further  proceedings  may  be  had  in  such  court  as  to 
law  and  justice  may  appertain.  Such  mandate  or  other  process  may 
issue  at  any  time  on  the  order  of  the  court,  and,  when  not  otherwise  or- 
dered, it  shall  issue  as  of  course  at  the  expiration  of  thirty  days  from 
the  date  of  entering  the  final  judgment  or  final  decree  of  this  court. 

Provisions  governing  "interest"  in  the  3d  circuit,  identical  with  those 
in  rule  30  for  the  1st  circuit,  are  contained  in  rule  28  for  the  third  cir- 
cuit. 

6th 
30.    PHYSICAL  EXHIBITS. 

1.  Physical  exhibits,  not  returned  with  the  record  but  which  are  to  bo 
used  on  the  hearing,  shall  be  placed  in  the  custody  of  the  marshal  of 
this  court  at  least  ten  days  before  the  case  is  heard  or  submitted. 

2.  All  such   physical   exhibits  shall   be   taken  away  by  the   parties 
promptly  after  the  mandate  issues.    When  this  is  not  done,  it  shall  be 
the  duty  of  the  marshal  to  notify  the  counsel  in  the  case,  by  mail  or 
otherwise,  of  the  requirements  of  this  rule,  and  if  the  articles  are  not 
removed  within  reasonable  time  after  the  notice  is  given,  he  shall  de- 
stroy them  or  make  such  other  disposition  of  them  as  to  him  may  seem 
best. 

Provisions  governing  "interest"  and  damages  in  the  6th  circuit  are 
contained  in  rule  26  above. 

7th 
30.    MANDATE. 

In  all  cases  finally  determined  in  this  court,  a  mandate  or  other  proper 
process  in  the  nature  of  a  procedendo  shall  be  issued,  on  the  order  or  by 
the  rule  of  this  court,  to  the  court  below,  for  the  purpose  of  inforniin.- 
such  court  of  the  proceedings  in  this  court,  so  that  further  proceed, 
may  be  had  in  such  court  as  to  law  and  justice  may  appertain. 

Provisions  governing  "interest"  in  the  7th  circuit  are  contained  in  rule 
28  above. 

Manual— 69 


930  APPENDIX 

RULE  31. 
1st        2d       4th        5th       8tk        9th 

31.    COSTS. 

L  In  all  cases  where  any  suit  shall  be  dismissed  in  this  court,1  except 
where  the  dismissal  shall  be  for  want  of  jurisdiction,  costs  shall  be  al- 
lowed to  the  defendant  in  error  or  appellee,  unless  otherwise  agreed  by 
the  parties.2 

2.  In  all  cases  of  affirmance  of  any  judgment  or  decree  in  this  court, 
costs  shall  be  allowed  to  the  defendant  in  error  or  appellee,  unless  other- 
wise ordered  by  the  court. 

3.3  In  cases  of  reversal  of  any  judgment  or  decree  in  this  court,  costs 
shall  be  allowed  to  the  plaintiff  in  error  or  appellant,4  unless  otherwise 
ordered  by  the  court. 

4.3  The  cost  of  the  transcript  of  the  record  from  the  court  below  shall 
be  taxable  in  that  court  as  costs  in  the  case. 

5.5  Neither  of  the  foregoing  sections  shall  apply  to  cases  where  the 
United  States  are  a  party ;  but  in  such  cases  no  costs  shall  be  allowed  in 
this  court  for  or  against  the  United  States. 

6.6  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the 
clerk  to  insert  the  amount  thereof  in  the  body  of  the  mandate,  or  other 
proper  process,  sent  to  the  court  below,  and  annex  to  the  same  the  bill 
of  items  taxed  in  detail. 

7.7  In  all  cases  certified  to  the  Supreme  Court  or  removed  thereto  by 
eertiorari  or  otherwise,  the  fees  of  the  clerk  of  this  court  shall  be  paid 
before  a  transcript  of  the  record  shall  be  transmitted  to  the  Supreme 
Court.8 

1  In  the  8th  and  9th  circuits  the  following  words  are  omitted  after  note 
number:  "except  where  the  dismissal  shall  be  for  want  of  jurisdiction." 

2  In  the  9th  circuit  substitute  for  the  words  "agreed  by  the  parties," 
the  words  "ordered  by  the  court." 

3  In  the  2d,  4th  and  5th  circuits,  3  and  4  as  given  above  are  combined 
in  3. 

In  the  2d  circuit  the  following  is  added  to  3  and  4,  combined  as  subd.  3: 
"And  the  clerk  of  the  court  below  shall  send  to  the  clerk  of  this  court  with 
the  transcript  of  record  a  certificate  of  the  cost  of  such  transcript." 

In  the  4th  circuit  the  following  is  added  to  3  and  4,  combined  as  subd.  3: 
"The  expense  of  printing,  however,  shall  be  taxed  at  actual  cost  (to  be  shown 
by  the  affidavit  of  the  printer),  but  in  no  event  to  exceed  twenty  cents  per 
folio  of  one  hundred  words." 

In  the  8th  circuit  the  following  is  added  to  3  and  4,  combined  as  subd.  3: 
"Where  the  record  has  been  printed  in  this  court  under  the  provisions  of  §§  1 
and  2  of  rule  23,  the  cost  of  printing  thirty  copies  of  the  transcript-  of  record 
from  the  court  below  shall  be  taxed  as  costs  in  the  case,  unless  otherwise 
ordered  by  thin  court,  but  no  allowance  shall  be  made  for  the  amount  paid 
to  the  clerk  of  the  court  below  for  the  written  or  typewritten  transcript 


RULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      931 

of  the  record.  Where  the  record  has  been  printed  in  the  court  below  and  a 
copy  of  such  printed  record  certified  to  this  court  the  cost  of  printing 
twenty-five  copies  of  such  record  or  portion  thereof  shall  be  taxable  ai 
costs  in  the  case  in  the  court  below,  unless  otherwise  ordered  by  this  court." 

4  In  the  9th  circuit  the  following  is  added  after  the  not*  number:  "in- 
cluding the  cost  of  transcript  from  the  court  below." 

5  In  the  2d,  4th,  5th,  8th  and  9th  circuits  subd.  5  is  numbered  4. 
•  In  the  2d,  4th,  5th,  8th  and  9th  circuits  subd.  6  is  numbered  5. 

7  In  the  2d,  4th,  5th,  8th  and  9th  circuit  subd.  7  is  numbered  6. 

In  the  4th  and  9th  circuits  an  additional  subdivision,  numbered  7  is  added. 

In  the  4th  it  reads:  "7.  The  following  table  of  feea  and  costs,  established 
under  the  act  of  Congress  of  February  19,  1897  (29  Stats.  536,  c.  263),  shall 
remain  and  continue  in  effect  with  the  promulgation  of  these  rules."     i  1 
follows  the  table  which  is  the  same  as  that  set  out  above  in  6th  circuit, 
Rule  27,  subd.  6.) 

In  the  9th  circuit  the  additional  subdivision  is  as  follows:  "7.  Upon  the 
clerk's  producing  satisfactory  evidence,  by  affidavit  or  the  acknowledgment 
of  the  parties  or  their  sureties,  of  having  served  a  copy  of  any  bill  of 
fees  due  by  them,  respectively,  in  this  court,  on  such  parties  or  their  surf 
an  attachment  shall  issue  against  such  parties  or  sureties  respectively  to 
compel  payment  of  said  fees." 

8  In  the  8th  circuit  add  to  subdivision  7,  at  the  end  thereof,  the  follow- 
ing: "except  that  no  fees  shall  be  charged  or  collected   for   any  printed 
record  or  portion  thereof  required  by  law  to  be  used  by  th«  clerk  in  the 
preparation  of  such  transcript  of  record." 

3d  7th 

31.    CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 
[Rule  on  "Costs"  in  3d  and  7th  circuits  is  rule  29.] 
[Other  circuits  this  is  rule  33.] 

1.  Pending  an  appeal  from  the  decision  of  any  court  or  judge  doolin- 
ing  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  prisoner  shall 
not  be  disturbed. 

2.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  writ  after  it  has  been  issued,  the  prisoner  shall  be  re- 
manded to  the  custody  from  which  he  was  taken  by  the  writ,  or  shall, 
for  good  cause  shown,  be  detained  in  custody  of  the  court  or  judge,  or 
be  enlarged  upon  recognizance,  as  hereinafter  provided. 

3.  Pending  an  appeal  from  a  final  decision  of  any  court  or  judge  dis 
charging  the  prisoner,  he  shall  be  enlarged  upon   recognizance,  with 
surety,  for  appearance  to  answer  the  judgment  of  the  appellate  court, 
except  where,  for  special  reasons,  sureties  ought  not  to  be  required. 

6th 

31.    LIBRARY. 

[Rule  on  "Costs"  in  6th  circuit  is  rule  27.] 

All  money  collected  by  the  clerk,  the  disposition  of  which  is  not  other- 
wise directed  by  law,  shall  constitute  a  fund  to  bo  ox-ponded  bv  <ho 


932  APPENDIX. 

clerk  under  the  direction  of  the  presiding  judge,  in  the  purchasing,  re- 
pairing, and  rebinding  of  law  books  for  the  library  of  the  court ;  and  it 
shall  be  his  duty  to  render  to  the  court,  for  its  examination  and  approval 
an  annual  account  of  such  money  received  by  him  and  of  his  disburse- 
ments thereof. 

7th 

31.    CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 
Same  as  for  3d  circuit  above. 
Rule  on  "Costs"  in  the  7th  circuit  is  rule  29. 

\ 

RULE  32. 
2d       4th       8th       9th 

32.    MANDATE. 

In  all  cases  finally  determined  in  this  court,  a  mandate  or  other  proper 
process  in  the  nature  of  procedendo,  shall  J  be  issued,2  on  the  order  of 
this  court,  to  the  court  below,  for  the  purpose  of  informing  such  court 
of  the  proceedings  in  this  court,  so  that  further  proceedings  may  be  had 
in  such  court  as  to  law  and  justice  may  appertain.3 

1  In  the  9th  circuit,  for  the  words  following  the  note  number,  "he  issued 
on  order  of  this  court,"  substitute  the  following,  "upon  payment  of  any  costs 
due  in  this  case,  be  issued  as  of  course  from  this  court." 

2  In  the  4th  circuit  omit  these  words  following  note  number:  "on  the 
order  of  this  court." 

3  In  the  4th  circuit  the  following  is  added  to  the  rule   above  quoted: 
"Such  mandate  or  other  process,  may  issue  at  any  time  on  the  order  of 
the  court;  but  unless  otherwise  ordered,  it  shall  issue  as  of  course  after 
the  expiration  of  thirty  days  from  the  date  of  the  judgment  or  decree." 

In  the  9th  circuit  the  following  is  added  to  rule  32  first  above  quoted: 
"Such  mandate,  if  not  stayed  by  the  order  of  the  court,  shall  be  issued  on 
the  expiration  of  thirty  days  from  the  date  of  such  final  determination, 
unless  within  said  time  a  petition  for  rehearing  be  filed,  in  which  case  the 
mandate  shall  be  stayed  until  five  days  after  the  determination  of  such 
petition." 

In  the  8th  circuit  the  following  note  is  added:  "By  an  order  entered  March 
30,  1911,  the  Clerk  is  directed  to  issue  a  mandate  or  other  proper  process,  to 
the  court  below,  in  all  cases,  sixty  days  after  the  final  disposition  thereof, 
except  in  cases  where  it  shall  be  otherwise  expressly  ordered." 

1st 

32.     MANDATE. 

In  every  case  finally  determined,  a  mandate,  or  other  proper  process  in 
the  nature  of  a  procedendo,  shall  be  issued  to  the  court  below,  for  the 
purpose  of  informing  that  court  of  the  proceedings  in  this  court,  so  that 


EULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      933 

r 

further  proceedings  may  be  had  in  the  court  below  as  to  law  and  jus- 
tice may  appertain.  Such  mandate,  or  other  process,  may  issue  at  any 
time  on  the  order  of  the  court;  but,  unless  otherwise  ordered,  it  shall 
issue  as  of  course  after  two  calendar  months  from  the  entry  of  judg- 
ment, unless  a  petition  for  a  rehearing  has  been  filed  and  remains 
undisposed  of. 

3d 

32.    MODELS,  DIAGRAMS  AND  EXHIBITS  OF  MATERIAL. 

[This  is  subject  of  rule  30,  6th  circuit;  rule  32,  7th  circuit;  rule  34, 
other  circuits.] 

1.  Models,  diagrams  and  exhibits  of  material  forming  part  of  the 
evidence  taken  in  the  court  below,  in  any  case  pending  in  this  court,  on 
writ  of  error  or  appeal,  shall  be  placed  in  the  custody  of  the  clerk  of 
this  court  at  least  ten  days  before  the  case  is  heard  or  submitted. 

2.  All  models,  diagrams  and  exhibits  of  material  placed  in  the  cus- 
tody of  the  clerk  for  the  inspection  of  the  court  on  the  hearing  of  a 
case,  must  be  taken  away  by  the  parties  within  one  month  after  the  case 
is  decided.     When  this  is  not  done,  it  shall  be  the  duty  of  the  clerk  to 
notify  the  counsel  in  the  case,  by  mail  or  otherwise,  of  the  requirements 
of  this  rule,  and,  if  the  articles  are  not  removed  within  a  reasonable 
time  after  the  notice  is  given,  he  shall  destroy  them,  or  make  such  other 
disposition  of  them  as  to  him  may  seem  best. 

This  concludes  the  rules  in  the  3d  circuit. 

5th 
32.    MANDATE. 

Mandates  shall  issue  at  any  time  after  twenty-one  days  from  the  date 
of  the  decision,  unless  an  application  for  a  rehearing  has  been  granted 
or  is  pending.  A  copy  of  the  opinion  of  this  court  shall  accompany  the 
mandate  when  a  new  trial  or  further  proceedings  are  to  be  had  in  the 
lower  court,  and  the  charge  for  such  copy  shall  be  taxed  in  the  costs  of 
the  case.  Provided  that  in  all  cases  entitled  to  precedence  in  this  court 
under  §  7  of  the  act  approved  March  3,  1891,  and  amendments  thereto, 
the  mandate  or  other  proper  process  shall  issue  after  the  expiration  of 
seven  days  from  the  date  of  the  decision,  unless  otherwise  ordered  by 
the  court  or  one  of  the  judges.  (As  amended  Jan.  12,  1905.) 


934  APPENDIX. 

6th 

32.  CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 

1.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
declining  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  prisoner 
shall  not  be  disturbed. 

2.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  writ  after  it  has  been  issued,  the  prisoner  shall  be  re- 
manded to  the  custody  from  which  he  was  taken  by  the  writ,  or  shall, 
for  good  cause  shown,  be  detained  in  the  custody  of  the  court  or  judge, 
or  be  enlarged  upon  recognizance,  as  hereinafter  provided. 

3.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  prisoner,  he  shall  be  enlarged  upon  recognizance,  with 
surety,  for  appearance  to  answer  the  judgment  of  the  appellate  court, 
except  where,  for  special  reasons,  sureties  ought  not  to  be  required. 

7th 
32.    MODELS,  DIAGRAMS  AND  EXHIBITS. 

[See  rule  in  3d  circuit  above.] 

Models,  diagrams  and  exhibits  of  material  forming  part  of  the  evi- 
dence taken  in  the  court  below,  and  in  any  case  pending  in  this  court 
on  writ  of  error  or  appeal,  shall  be  placed  in  the  custody  of  the  marshal 
for  the  use  of  this  court  at  least  ten  days  before  the  case  is  heard  or 
submitted;  and  shall  be  taken  away  by  the  parties  within  one  month 
after  the  case  is  decided.  When  this  is  not  done,  it  shall  be  the  duty 
of  the  marshal  to  notify  the  counsel  in  the  case,  by  mail  or  otherwise, 
of  the  requirements  of  this  rule,  and,  if  the  articles  are  not  removed 
within  a  reasonable  time  after  the  notice  is  given,  he  shall  destroy  or 
make  such  other  disposition  of  them  as  to  him  may  seem  best. 

RULE  33  (Except  3d  Circuit  Concluded). 
1st        2d        4th        5th        —          8th          9th 

33.  CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 

[In  the  3d  and  7th  circuits  this  is  rule  31,  and  in  the  6th,  rule  32.] 

1.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
declining  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  pris- 
oner shall  not  be  disturbed. 

2.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  writ  after  it  has  been  issued,  the  prisoner  shall  be  re- 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      935 

manded  to  the  custody  from  which  he  was  taken  by  the  writ,  or  shall, 
for  good  cause  shown,  be  detained  in  custody  of  the  court  or  judge,  or 
be  enlarged  upon  recognizance,  as  hereinafter  provided. 

3.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  prisoner,  he  shall  be  enlarged  upon  recognizance,  with 
surety,  for  appearance  to  answer  the  judgment  of  the  appellate  court, 
except  where,  for  special  reasons,  sureties  ought  not  to  be  required. 

6th 
33.    MANDAMUS  AND  PROHIBITION. 

[Rule  on  "Custody  of  Prisoners  on  Habeas  Corpus"  is  rule  32,  6th 
circuit.] 

1.  The  alternative  writ  of  mandamus  will  not  be  issued,  but  on  proper 
showing  an  order  to  show  cause  will  be  made. 

2.  A  party  desiring  a  writ  of  mandamus  or  prohibition  shall  file  his 
petition  therefor  and  showing  in  support  thereof  together  with  such 
brief  or  memorandum  as  he  may  desire.    These  need  not  be,  at  this 
time,  printed,  and  notice  need  not  be  given.    He  shall  "deposit  ten  dollars 
with  the  clerk  on  account  of  fees.     The  clerk  shall  enter  the  application 
on  his  docket,  and  informally  submit  the  papers  to  the  court. 

3.  If  the  court  is  of  the  opinion  that  the  application  justifies  a  hear- 
ing, an  order  to  show  cause  will  be  entered  returnable  as  promptly  as 
the  situation  permits ;  if  of  contrary  opinion,  an  order  of  denial  will  be 
made,  and  the  clerk  shall  notify  the  applicant  accordingly,  enter  the 
case  on  his  docket  as  closed  and  return  to  the  applicant  the  surplus, 
if  any,  of  the  fee  deposited. 

4.  If  such  order  to  show  cause  is  made,  the  clerk  shall  deliver  a  cer- 
tified copy  to  the  applicant  who  shall  cause  the  same  to  be  served  within 
the  time  and  in  the  manner  fixed  in  the  order.     An  answer  or  return 
shall  be  filed  on  or  before  the  return  day  as  specified  in  the  order  or  as 
extended  by  a  judge  of  this  court.    Unless  within  ten  days  after  the 
filing  of  such  answer  or  return  the  appellant  makes  special  motion  to 
award  and  frame  issue,  or,  if  an  issue  is  framed,  then  upon  the  return 
of  the  proceedings  thereon,  and  unless  the  court  orders  a  hearing  as 
upon  motion,  the  matter  shall  stand  for  hearing  upon  the  calendar  and 
the  clerk  shall  receive  the  remaining  twenty-five  dollars  of  the  usual  fee 
deposit,  estimate  and  require  a  deposit  for  printing  and  print  the  record, 
briefs  shall  be  filed,  and  the  matter  in  all  respects  proceed  like  other 
docketed  causes. 


936  APPENDIX. 

7th 
33.    LAW  LIBRARY. 

1.  The  library  of  the  court  shall  be  under  general  supervision  and 
custody  of  the  clerk  of  the  court. 

2.  No  books  shall  be  removed  from  the  library  except  upon  a  written 
order  of  a  judge  of  this  court,  except,  that  during  the  sessions  of  the 
court  any  lawyer  who  has  a  case  on  the  docket,  upon  written  applica- 
tion to,  the  clerk  and  upon  the  clerk's  written  order,  may  take  from  the 
library  not  exceeding  three  volumes  at  a  time;  being  responsible  for  the 
return  thereof  within  twenty-four  hours  and  in  default  of  return  shall 
pay  to  the  clerk  for  the  library  fund  twice  the  value  thereof,  but  if 
returned  in  good  condition  one  dollar  for  each  day's  detention  beyond 
the  limited  time. 

RULE  84  (Except  3d  Circuit,  Concluded). 
1st       4th       5th 8th       9th 

34.    MODELS,  DIAGRAMS  AND  EXHIBITS  OF  MATERIAL. 

[In  the  3d  and  7th  circuits  this  is  subject  of  rule  32,  in  the  6th,  rule 
30.] 

1.  Models,  diagrams  and  exhibits  of  material,  forming  a  part  of  the 
evidence  taken  in  the  court  below,  in  any  case  pending  in  this  court,  on 
writ  of  error  or  appeal,  shall  be  placed  in  the  custody  of  the  marshal 
["clerk,"  2d  and  4th  circuits]  of  this  court  at  least  ten  days  before  the 
case  is  heard  or  submitted. 

2.  [Omitted  in  2d  circuit.]     All  models,  diagrams,  and  exhibits  of 
material,  placed  in  the  custody  of  the  marshal  ["clerk,"  4th  circuit]  for 
the  inspection  of  the  court  on  the  hearing  of  a  case,  must  be  taken  away 
by  the  parties  within  one  month  after  the  case  is  decided.     When  this 
is  not  done  it  shall  be  the  duty  of  the  marshal  ["clerk,"  4th  circuit]  to 
notify  the  counsel  in  the  case,  by  mail  or  otherwise,  of  the  requirements 
of  this  rule;  and  if  the  articles  are  not  removed  within  a  reasonable  time 
after  the  notice  is  given,  he  shall  destroy  them,  or  make  such  other  dis- 
position of  them  as  to  him  may  seem  best. 

2d 

34.    MODELS,  DIAGRAMS  AND  EXHIBITS  OF  MATERIAL. 

1.  Models,  diagrams  and  exhibits  of  material,  forming  a  part  of  the 
evidence  taken  in  the  court  below,  in  any  case  pending  in  this  court,  on 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      937 

;  writ  of  error  or  appeal,  except  customs  cases,  shall  be  placed  in  the  custody 
of  the  clerk  of  this  court  at  least  ten  days  before  the  case  is  heard  or 
submitted. 

2.  Three  copies  must  be  furnished  for  the  use  of  the  court  of  any 
maps,  charts,  plans,  diagrams,  or  other  papers  or  documents  which  it  is 
intended  to  refer  to  on  the  argument,  and  which  are  not  contained  in  the 
transcript  of  record  as  certified  from  the  court  below. 

3.  All  exhibits  of  material  in  customs  cases  must  be  filed  with  the 
clerk  at  the  time  of  filing  the  transcript  of  record,  and  such  exhibits  will 
be  returned  to  the  clerk  of  the  district  court  at  the  expiration  of  sixty 
days  from  the  decision  of  the  case  by  this  court.     All  other  models, 
diagrams,  and  exhibits  of  material  placed  in  the  custody  of  the  clerk  for 
the  inspection  of  the  court  on  the  hearing  of  a  case  must  be  taken  away 
by  the  parties  within  one  month  after  the  case  is  decided.     It  shall  be 
the  duty  of  the  clerk  to  notify  the  counsel  in  the  case,  by  mail  or  other- 
wise, of  the  requirements  of  this  rule;  and  if  the  articles  are  not  re- 
moved within  the  time  above  specified,  he  shall  destroy  them,  or  make 
such  other  disposition  of  them  as  to  him  may  seem  best. 

6th 
34.    PETITION  TO  REVISE  IN  BANKRUPTCY. 

[Rule  as  to  "Physical  Exhibits"  is  rule  30,  6th  circuit.] 

1.  A  petition  to  revise  shall  contain,  first,  a  concise  history  of  so  much 
of  the  proceedings  before  the  referee  and  the  district  court  as  may  be 
necessary  to  make  plain  the  errors  assigned;  second',  an  assignment  of 
the  errors  in  respect  to  which  revision  in  matter  of  law  is  sought;  third, 
as  exhibits  to  the  petition,  copies  certified  by  the  clerk  of  the  district 
court  of  each  paper  or  proceeding  relied  upon  to  support  the  errors  as- 
signed; and  fourth,  any  findings  of  fact  that  may  he  filed  pursuant  to 
clause  2  hereof;  but  a  petition  to  revise  shall  not  be  filed  so  late  as  to 
delay  the  hearing  of  any  appeal  that  may  have  been  taken  in  the  same 
matter;  and  it  may  incorporate,  by  reference  and  without  repeating,  any 
parts  of  the  return  in  such  appeal. 

2.  Whenever  the  district  court  has  made  any  order  in  a  proceeding 
in  bankruptcy  which  involves  or  depends  upon  facts  made  to  appear 
otherwise  than  solely  by  the  pleadings  in  the  matter,  and  the  district 
judge  is  notified  in  writing  by  any  party  that  he  intends  to  file  a  ix-ti- 
tion  to  revise  and  deems  finding  of  fact  to  be  necessary,  it  shall  be  the 
duty  of  the  district  judge,  as  soon  as  possible,  to  make  and  file  with 
the  clerk  of  the  district  court  his  findings  of  fact  in  such  matter. 


938  APPENDIX. 

3.  At  or  before  the  filing  of  such  petition,  a  complete  copy  thereof 
shall  be  served  upon  counsel  for  each  separate,  adverse  interest,  and 
the  petition,  when  offered  for  filing,  shall  contain  due  proof  or  acknowl- 
edgment of  such  service. 

4.  Unless  within  ten  days  after  the  filing  of  such  petition  an  adverse 
party  in  interest  shall  file  an  answer  denying  the  accuracy  of  the  ex- 
hibits to  the  petition,  or  setting  out  as  exhibits  certified  copies  of  addi- 
tional papers  or  proceedings  which  are  thought  to  bear  upon  the  errors 
assigned,  the  accuracy  and  completeness  of  the  exhibits  shall  be  pre- 
sumed to  be  admitted.     Such  answer  may  also  incorporate  by  reference 
any  orders  or  records  in  any  co-pending  appeal. 

5.  Upon  the  coming  in  of  such  answers  or  the  expiration  of  such  ten 
days,  such  petition  shall  stand  for  hearing,  and  the  clerk  shall  estimate 
and  require  deposit  for  and  cause  the  record  to  be  printed,  and  briefs 
shall  be  filed,  all  as  in  other  causes. 

This  concludes  the  rules  in  the  sixth  circuit. 

7th 

34.    WRITS  OF  ERROR  IN  CRIMINAL  CASES. 
[Rule  as  to  "Models,  Diagrams  and  Exhibits"  is  rule  32,  7th  circuit.] 

1.  Writs  of  error  from  this  court  to  review  criminal  cases  tried  in  any 
district  or  circuit  court  of  the  United  States  within  this  circuit,  may  be 
allowed  in  term  time  or  in  vacation  by  the  circuit  justice  assigned  to 
this  circuit,  or  by  any  of  the  circuit  judges,  within  the  circuit  or  by  any 
district  judge  within  his  district,  or  the  proper  security  be  taken,  and 
the  citation  signed  by  him,  and  he  may  also  grant  a  supersedeas  and 
stay  of   execution   or   proceedings,   pending  the   determination   of   such 
writ  of  error. 

2.  Where  such  writ  of  error  is  allowed  in  the  criminal  cases  aforesaid, 
the  circuit  court  or  district  court  before  which  the  accused  was  tried  or 
the  district  judge  of  the  district  wherein  he  was  tried,  within  his  dis- 
trict, or  the  circuit  justice  assigned  to  this  circuit,  or  any  of  the  circuit 
judges  within  the  circuit,  shall  have  the  power,  after  the  citation  has 
been  duly  served,  to  admit  the  accused  to  bail  and  to  fix  the  amount  of 
such  bail. 

This  concludes  the  roles  in  the  seventh  circuit. 


1st 


RULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OF  AIT 

RULE  35  (Except  3d,  6th  and  7th  Circuits,  Concluded). 


35.  ERROR  IN  CRIMINAL  CASES. 

On  or  after  the  allowance  of  a  writ  of  error  in  a  criminal  case,  cog- 
nizable by  this  court,  the  justice  or  judge  who  allowed  the  writ,  or  the 
court  which  entered  the  judgment,  or  any  judge  thereof,  shall  have 
power  to  admit  to  bail  the  plaintiff  in  error,  according  to  the  rules  of 
law  applicable  to  his  case. 

Id 

35.    ALLOWANCE  OF  APPEALS  AND  WRIT  OF  ERROR— BAIL. 

1.  An  appeal  or  writ  of  error  from  a  circuit  court  or  a  district  court 
to  this  court  in  the  cases  provided  for  in  §§  6  and  7  of  the  act  entitled 
"An  Act  to  Establish  Circuit  Courts  of  Appeals  and  to  Define  and  Regu- 
late in   Certain   Cases  the  Jurisdiction   of  the  Courts  of  the  United 
States,  and  for.  Other  Purposes,"  approved  March  3,  1891,  and  acts  to 
amend  said  act  approved  February  18,  1895,  and  January  20,  1897,  may 
be  allowed  in  term  time  or  vacation  by  the  circuit  justice  or  by  any  cir- 
cuit judge  within  the  circuit  or  by  any  district  judge  within  his  district, 
and  the  proper  security  be  taken  and  the  citation  be  signed  by  him,  and 
he  may  also  grant  a  aupersedeas  and  stay  of  execution  or  of  proceedings, 
pending  such  writ  of  error  or  appeal. 

2.  Where  such  writ  of  error  from  this  court  is  allowed  in  the  case  of 
a  conviction  of  an  infamous  crime  or  in  any  other  criminal  case  in  which 
it  will  lie,  the  district  court  or  the  judge  thereof,  or  any  circuit  judge 
of  the  circuit  or  the  circuit  justice,  shall  have  power,  after  the  citation 
is  served,  to  admit  the  accused  to  bail  in  such  amount  as  may  be  fixed. 
(Adopted  May  3,  1897.) 

4th 

35.    SATURDAY  CONFERENCE  DAT. 

Clerk  in  making  his  docket  shall  not  set  down  for  argument  any  cause 
for  any  Saturday  of  the  term  for  which  such  docket  is  intended,  and 
this  court  will  meet  on  said  days  for  consultation  only. 

5th 

35.    ORDER  IN  RELATION  TO  ASSIGNMENT  OF  CASES  FOR 

HEARING. 

Unless  otherwise  ordered  by  the  senior  circuit  judge,  thirty  days  prior 
to  the  opening  of  a  regular  session  of  this  court,  the  clerk  is  directed 
to  assign  cases  for  hearing  as  follows : 


940  APPENDIX. 

At  Atlanta,  Georgia,  four  cases  per  day  for  the  first  three  days  of 
each  week; 

At  Montgomery,  Alabama,  four  cases  for  the  first  three  days  of  each 
week; 

At  Fort  Worth,  Texas,  four  cases  per  day  for  the  first  three  days  of 
each  week; 

At  New  Orleans,  Louisiana,  two  cases  per  day  for  the  first  three  days 
of  each  week. 

The  above  assignments  shall  be  made  in  accordance  with  existing  law 
regulating  the  return  of  appeal,  writs  of  error  and  other  appellate  pro- 
ceedings in  the  fifth  judicial  circuit :  Provided  that  cases  entitled  by  law 
to  preference  in  hearing  and  bankruptcy  cases  shall  be  first  assigned, 
and  cases,  whether  preference  or  not,  may  upon  stipulation  of  the  par- 
ties filed  with  the  clerk  and  approved  by  the  court,  be  assigned  for 
hearing  at  any  other  place  or  session  of  this  court  designated  in  such 
stipulation. 

Except  as  hereinabove  provided,  the  assignment  of  cases  at  New 
Orleans,  Louisiana,  shall  be  grouped  by  states,  so  as  to  permit  the  hear- 
ing of  cases  from  one  state  before  the  cases  from  the  next  state  in  order 
shall  be  called.  (As  amended  Oct.  15,  1906.) 

8th 
35.    WRITS  OF  ERROR  IN  CRIMINAL  CASES. 

1.  Writs  of  error  to  review  criminal  cases  tried  in  any  district  court 
of  the  United  States  within  this  circuit,  which  may  be  reviewed  under 
the  provisions  of  "the  Judicial  Code,"  approved  March  3,  1911,  may  be 
allowed  in  term  time  or  in  vacation  by  the  circuit  justice  assigned  to  this 
circuit,  or  by  either  of  the  circuit  judges  within  the  circuit,  or  by  any 
district  judge  within  his  district,  and  the  proper  security  be  taken,  and 
the  citation  signed  by  him,   and  he  may  also   grant  a  supersedeas  and 
stay  of  execution  or  proceedings,  pending  the  determination  of  such'writ 
of  error. 

2.  Where  such  writ  of  error  is  allowed  in  the  criminal  cases  afore- 
said, the  district  court  before  which  the  accused  was  tried,  or  the  dis- 
trict judge  of  the  district  wherein  he  was  tried,  within  the  district,  or 
the  circuit  justice  assigned  to  the  circuit,  or  either  of  the  circuit  judges 
within  the  circuit,  shall  have  the  power,  after  the  citation  has  been  duly 
served,  to  admit  the  accused  to  bail  in  such  amount  as  may  be  fixed, 
such  bail  bond  to  be,  as  near  as  may  be,  in  the  form  prescribed  in  the 
Appendix  to  these  rules. 


RULES  OF  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      941 

9th 
35.    ASSIGNMENT  OF  CAUSES  FOR  HEARING. 

1.  Thirty  days  prior  to  the  opening  of  any  calendar  session  of  the 
court,  the  clerk  is  directed  to  assign  causes  for  hearing  at  the  rate  of 
one  case  for  the  first  day  of  each  term  or  session,  and  two  cases  per  day 
for  each  of  the  ensuing  court  days  of  such  term  or  session.    The  causes 
shall  be  grouped  by  states,  and  assignments  made,  so  as  to  permit  the 
hearing  of  causes  from  one  state  before  the  causes  from  the  next  state 
in  order  shall  be  called;  causes  from  the  northern  district  of  California 
shall  be  assigned  for  hearing  last.     Any  causes  entitled  by  law  to  pref- 
erence in  hearing  shall  be  first  assigned  and  take  precedence  over  other 
causes  from  the  same  state. 

2.  No  change  of  the  day  assigned  for  hearing  will  be  made  except  by 
order  of  the  court  for  reasons  shown,  and  no  term  or  session  of  the  court 
will  be  extended  beyond  the  foot  of  the  calendar  as  made  up  pursuant 
to  the  provisions  of  this  rule. 

3.  Ten  days  before  each  calendar  session  of  the  court  the  clerk  shall 
prepare  and  cause  to  be  printed  a  calendar  of  the  causes  assigned  for 
the  approaching  session. 

RULE  36  (None  in  3d,  6th  and  7th  Circuits). 


36.    RULES  IN  BANKRUPTCY. 

1.  On  the  filing  of  a  petition  for  the  exercise  of  the  power  of  super- 
intendence and  revision  vested  in  this  court  by  the  act  to  establish  a 
uniform  system  of  bankruptcy  throughout  the  United  States,  approved 
July  1,  1898,  or  under  any  acts  which  may  hereafter  be  passed  in  addi- 
tion thereto  or  amendatory  thereof,  the  clerk  shall  issue,  as  of  course, 
an  order  to  show  cause,  returnable  two  weeks  from  the  date  thereof, 
which  shall  be  served  by  copy  on  each  of  the  adverse  parties  named  in 
the  petition  as  a  person  against  whom  relief  is  desired,  or  as  solicitor 
in  the  proceeding  in  the  district  court,  at  least  one  week  before  tin-  re- 
turn  day  of  the  order,  which  service  shall  be  made  by  the  marshal  or  his 
deputy  in  the  district  where  the  party  or  solicitor  served  resides. 

2.  Within  one  calendar  month  after  the  return  day  of  the  order  to 
show  cause,  either  party  may  demur,  plead  or  answer;  but  the  deter- 
mination of  any  demurrer,  plea  or  answer,  shall  be  final,  and  no  order 
to  plead  over  will  be  allowed ;  and  any  party  may  secure  in  his  answer 
all  the  advantages  of  a  demurrer  or  plea,  or  both,  by  inserting  therein 


942  APPENDIX. 

the  proper  allegations  therefor.    No  demurrer  shall  be  general,  and  no 
cause  of  demurrer  shall  be  allowed  unless  specifically  set  forth  therein. 

3.  There  shall  be  no  pleadings  in  reply  by  the  petitioner;  but  any 
new  matter  properly  in  reply  shall  be  available  without  the  same  being 
pleaded  in  the  petition,  or  otherwise. 

4.  A  motion  to  dismiss  may  be  filed  within  the  time  allowed  for  a 
demurrer,  plea  or  answer;  or  the  subject  matter  thereof,  if  it  relates  to 
the  substance  of  the  proceeding  or  to  the  jurisdiction  of  the  court  may 
be  availed  of  on  demurrer,  plea  or  answer,  by  proper  allegations;  and 
whenever  a  motion  to  dismiss  is  seasonably  filed,  the  time  for  filing  de- 
murrer, plea  or  answer,  will  run  from  the  day  on  which  an  order  may 
be  entered  overruling  the  motion.     Every  motion  to  dismiss  shall  be 
filed  in  print,  accompanied  with  a  printed  brief;  and  each  of  the  oppos- 
ing parties  shall-  forthwith  be  served  by  the  clerk,  through  the  mail  or 
otherwise,  with  a  copy  of  the  motion  and  of  the  brief,  and  he  may  file, 
in  print,  a  brief  in  reply  within  two  weeks.     At  the  expiration  of  the 
time  allowed  for  filing  the  brief  in  reply,  the  motion  and  briefs  will  be 
distributed  by  the  clerk  to  the  circuit  judges,  and  to  the  district  judge, 
senior  in  commission,  who  is  not  disqualified.     Thereupon  the  motion 
will  be  disposed  of  by  the  court  on  the  briefs,  unless,  at  its  own  sugges- 
tion, or  for  good  cause  shown,  the  court  shall  order  oral  arguments. 

5.  So  much  of  the  rule  14  as  relates  to  viva  voce  proofs  in  the  dis- 
trict courts,  or  to  further  proof  in  instance  causes  in  admiralty  shall 
apply  to  appeals  and  petitions  authorized  by  the  act  aforesaid,  or  by 
acts  hereafter  passed  additional  thereto  or  amendatory  thereof;  pro- 
vided any  record  on  any  such  appeal  or  petition  may  be  supplemented 
by  any  matter  agreed  to  in  writing  by  the  parties  and  filed  with  the 
clerk. 

6.  The  rules  with  reference  to  records,  printing  and  briefs,  and  all 
other  rules,  except  as  herein  modified,  shall  apply  to  the  proceedings  to 
which  this  order  relates. 

7.  Nothing  herein  shall  prevent  the  court,  from  time  to  time,  from 
making,  for  special  cause,  orders  diminishing  or  enlarging  the  times 
named  herein,  or  any  other  orders  suitable  to  expedite  the  proceeding, 
or  to  prevent  injustice. 

2d 
36.    SECURITY  FOR  CLERK'S  FEES— TAXING  COSTS. 

1.  In  all  cases  the  plaintiff  in  error  or  appellant  on  docketing  a  case 
and  filing  a  record,  shall  enter  into  an  undertaking  with  the  clerk,  for 
the  payment  of  his  fees  or  otherwise  satisfy  him  in  that  behalf. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      943 

2.  At  the  expiration  of  ten  days  after  a  case  has  been  decided,  the 
order  or  decree  thereon  will  be  entered  by  the  court,  and  the  clerk  will 
thereupon  prepare  and  tax  the  bill  of  costs  and  issue  the  mandate. 
Within  said  ten  days  the  parties  may  file  with  the  clerk  their  proposed 
orders  or  decrees  and  bills  of  costs  with  proof  of  service  of  the  same 
upon  the  opposing  attorneys. 

4th 
36.    BANKRUPTCY. 

1.  Upon  the  filing  of  the  petition  for  review  as  provided  for  in  §  24  (b) 
of  the  act  to  establish  a  uniform  system  of  bankruptcy  throughout  the 
United  States,  approved  July  1st,  1898,  the  clerk  of  this  court  shall 
docket  the  cause,  and  shaH  forthwith  serve  a  Certified  copy  of  petition 
upon  the  respondent  or  respondents,  or  their  solicitors,  through  the  mail 
or  otherwise,  together  with  a  notice  to  the  respondent  or  respondents, 
to  answer,  demur,  or  move  to  dismiss  the  said  petition  within  the  fifteen 
days  from  the  date  of  such  notice.    Petitions  to  review  orders  in  bank- 
ruptcy filed  under  the  provisions  of  section  24b  of  the  Bankruptcy  Act 
must  be  filed  within  ten  days  after  the  entry  of  the  order  sought  to  be 
reviewed,  but  any  Judge  of  this  Court  may,  for  good  cause  shown,  en- 
large the  time  for  filing  the  petition,  provided,  the  order  of  enlargement 
is  made  before  the  expiration  of  the  time  hereby  limited  for  filing  the 
petition.     Said  order  to  be  filed  with  the  Clerk  of  this  Court. 

2.  The  petitioner  shall  cause  a  certified  printed  transcript  of  the  rec- 
ord and  proceedings  of  the  bankruptcy  court  of  the  matter  to  be  re- 
viewed, to  be  filed  in  the  clerk's  office  of  this  court  within  forty  df.ys 
from  the  date  of  the  filing  of  his  petition  for  review. 

3.  By  consent  of  all  parties  to  the  cause,  by  stipulation  in  writing  filed 
with  the  clerk  of  this  court,  the  petitioner  may  cause  a  transcript  of 
the  record  and  proceedings  of  the  bankruptcy  court  of  the  matter  to  be 
reviewed  to  be  filed  in  the  clerk's  office  of  this  court  in  lieu  of  a  certified 
printed  transcript  as  above  mentioned,  and  thereupon  the  clerk  of  this 
court  shall  cause  the  record  to  be'  printed  as  provided  in  the  23d  rale  of 
this  court,  and  furnish  counsel  on  both  sides  with  three  copies  each. 

4.  And  such  causes  shall  stand  for  hearing  in  their  regular  order.    But 
either  side  may,  upon  ten  days'  notice  given  to  the  opposing  counsel, 
have  the  cause  heard,  either  at  term  time,  or  in  vacation,  or  in  chambers, 
upon  the  briefs,  unless  at  its  own  suggestion,  or  for  good  cause  shown, 
the  court  shall  order  oral  argument. 

6.  That  all  causes  coming  up  by  appeal  as  provided  in  §  25  of  said 
bankruptcy  act  shall  stand  for  hearing  in  this  court,  either  in  term  time 


9.44  APPENDIX. 

or  in  vacation,  and  may  be  called  up  by  either  party  upon  ten  days' 
notice,  as  provided  in  §  4  of  this  rule. 

6.  All  rules  of  this  court  (except  as  herein  modified)  shall  apply  to  the 
proceedings  in  bankruptcy  to  which  this  rule  relates. 

7.  Nothing  herein  shall  prevent  the  court,  from  time  to  time,  from 
making,  for  special  cause,  orders   diminishing  or  enlarging  the  times 
named  herein,  or  any  other  order  suitable  to  expedite  the  proceeding  or 
to  prevent  injustice. 

5th 
36.    ASSIGNMENT  OF  JUDGES. 

It  is  ordered  that  whenever  a  full  bench  of  three  judges  shall  not  be 
made  up  by  the  attendance  of  the  associate  justice  of  the  Supreme  Court 
assigned  to  the  circuit,  and  of  the  circuit  judges,  so  many  of  the  dis- 
trict judges,  in  the  order  of  seniority  of  their  respective  commissions 
and  qualified  to  sit,  as  may  be  necessary  to  make  up  a  full  court  of  three 
judges,  are  hereby  designated  and  assigned  to  sit  in  this  court :  Provided, 
however,  that  the  court  may  at  any  time,  by  particular  assignment,  des- 
ignate any  district  judge  to  sit  as  aforesaid. 

8th 
36.    PETITIONS  TO  REVISE. 

A  petition  to  revise,  under  the  provisions  of  §  24  (b)  of  the  bank- 
ruptcy law,  approved  July  1st,  1898,  shall  be  filed  and  docketed  as  an 

original  action  in  this  court,  and  be  entitled  " ,  Petitioner,  v.  , 

Respondent,"  and  shall  specifically  designate  the  respondent  or  respond- 
ents upon  whom  the  petitioner  desires  notice  to  be  served,  and  a  suffi- 
cient number  of  copies  of  such  petition  shall  be  furnished  the  clerk  at 
the  time  of  filing  so  that  a  copy  may  be  served  upon  each  of  the 
respondents. 

9th 
36.    TERMS  AND  SESSIONS  OF  THE  COURT. 

1.  One  term  of  this  court  shall  be  held  annually  on  the  first  Monday 
of  October  and  adjourned  sessions  on  the  first  Monday  of  each  month  in 
the  year.     All  sessions  shall  be  held  at  San  Francisco,  unless  otherwise 
especially  ordered  by  the  court. 

2.  The  October,  February,  and  May  sessions  shall  be  known  as  cal- 
endar sessions,  and  shall  be  sessions  for  the  trial  of  all  causes  that  shall 
have  been  placed  upon  the  calendar  in  pursuance  of  rule  35. 

3.  A  term  of  this  court  shall  be  held  annually  in  the  city  of  Seattle, 
in  the  state  of  Washington,  and  in  the  city  of  Portland,  in  the  state  of 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      945 

t 

Oregon.  The  Seattle  term  shall  be  held  beginning  upon  the  third  Mon- 
day in  September,  and  the  term  at  Portland  shall  be  held  following  the 
adjournment  thereof. 

All  appeals  and  writs  of  error  from  the  district  courts  for  the  dis- 
tricts of  Washington,  the  transcripts  of  which  shall  be  filed  in  this  court 
between  the  first  day  of  April  and  the  first  day  of  August  of  each  year, 
shall  be  heard  at  said  annual  term  in  the  city  of  Seattle,  unless  it  be 
stipulated  by  the  parties  thereto  that  they  be  heard  at  San  Francisco. 
All  other  appeals  and  writs  of  error  from  said  district  courts  for  those 
districts  shall  be  heard  at  San  Francisco,  unless  it  be  stipulated  by  the 
parties  thereto  that  they  be  heard  at  said  annual  term  in  the  city  of 
Seattle.  All  appeals  and  writs  of  error  from  the  district  court  for  the 
district  of  Oregon,  the  transcripts  of  which  shall  be  filed  in  this  court 
between  the  first  day  of  April  and  the  first  day  of  August  of  each  year, 
shall  be  heard  at  said  annual  term  in  the  city  of  Portland,  unless  it  be 
stipulated  by  the  parties  thereto  that  they  be  heard  at  San  Francisco. 
All  other  appeals  and  writs  of  error  from  said  district  court  for  that 
district  shall  be  heard  at  San  Francisco,  unless  it  be  stipulated  by  the 
parties  thereto  that  they  be  heard  at  said  annual  term  in  the  city  of 
Portland.  Appeals  and  writs  of  error  from  the  district  courts  of  the 
districts  of  Idaho  and  Montana  and  from  the  district  courts  of  Alaska, 
may,  upon  the  stipulation  of  the  parties  thereto,  be  heard  at  the  annual 
term,  and  be  held  either  at  Seattle  or  Portland.  All  cases  assigned  for 
hearing  at  Seattle,  and  at  Portland,  shall  be  placed  upon  a  calendar  by 
the  clerk  to  be  called  on  the  opening  day  of  the  term  at  Seattle  and  set 
for  hearing  during  the  Seattle  and  Portland  terms,  respectively. 


RULE  37  (None  in  3d,  6th  and  7th  Circuits). 

1st 

Appeals  and  writs  of  error  from  and  to  the  District  Court  of  the 
United  States  for  the  District  of  Porto  Rico,  and  from  the  Supreme 
Court  of  the  District  of  Porto  Rico  whenever  by  law  they  can  be  taken, 
shall  be  taken  within  six  calendar  months  from  the  time  when  the  right 
to  such  an  appeal  or  writ  of  error  accrues,  and  not  afterwards,  by  filing 
a  claim  for  the  appeal  in  the  registry  of  the  court  appealed  from,  or 
by  suing  out  a  writ  of  error  from  the  Court  of  Appeals,  or  from  the 
court  or  judge  in  Porto  Rico,  as  the  case  may  be. 

Manual— 60 


946  APPENDIX. 

2d 

37.    CITATIONS  OF  AUTHORITIES. 

In  the  preparation  of  briefs  any  citations  made  from  "Federal  Cases" 
must  be  accompanied  by  the  citation  of  the  original  report  of  the  case, 
and  where  a  citation  is  made  from  the  American  Bankruptcy  Reports, 
citation  in  the  Federal  Reporter  or  United  States  Supreme  Court  Reports 
must  also  be  given.  If  the  case  is  not  reported  elsewhere  than  in  Fed- 
eral Cases  or  American  Bankruptcy  Reports,  the  fact  must  be  so  stated. 

4th 

The  foregoing  rules  shall  be  in  force  on  and  after  April  1st,  1912. 
Since  April  1st,  1912,  another  rule  has  been  added  in  the  4th  circuit, 
numbered  38. 

5th 
37.    WRITS  OF  ERROR  IN  CRIMINAL  CASES. 

1.  Writs  of  error  to  review  criminal  cases  tried  in  any  district  or  cir- 
cuit court  of  the  United  States  within  this  circuit,  which  may  be  re- 
viewed under  the  provisions  of  the  act  of  March  3,  1891,  creating  this 
court,  and  the  act  of  Congress  amendatory  thereof,  approved  January 
20,  1897,  may  be  allowed  in  term  time  or  in  vacation  by  the  circuit  jus- 
tice assigned  to  this  circuit  by  either  of  the  circuit  judges,  or  by  any 
district  judge  who  presided  on  the  trial,  and  the  proper  security  be 
taken,  and  the  citation  be  signed  by  him,  and  he  may  also  grant  a  super- 
sedeas  and  stay  of  execution  or  proceedings  pending  the  determination 
of  such  writ  of  error. 

2.  Where  such  writ  of  error  is  allowed  in  any  criminal  case  as  afore- 
said, the  circuit  court  or  district  court,  before  which  -the  accused  was 
tried,  or  the  trial  judge,  or  the  circuit  justice  assigned  to  the  circuit,  or 
either  of  the  circuit  judges,  shall  have  the  power,  after  the  citation  has 
been  duly  served,  to  admit  the  accused  to  bail  in  such  amount  as  may 
be  fixed,  such  bail  bond  to  be,  as  near  as  may  be,  in  the  form  prescribed 
in  the  Appendix  to  these  rules.     (Adopted  June  11,  1897.) 


BULBS  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      947 

APPENDIX  TO  RULE  37  (5th  Circuit). 

(Form  of  Appearance  Bond  on  Writ  of  Error  in  Criminal  Cases.) 
KNOW  ALL  MEN  BY  THESE  PRESENTS: 

That  we,  ,  as  principal,  and  ,  as  sureties,  are  held  and  firmly 

bound  unto  the  United  States  of  America  in  the  full  and  just  sum  of 

dollars,  to  be  paid  to  the  said  United  States  of  America,  to  which  payment 
well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors  and  ad- 
ministrators, jointly  and  severally,  by  these  presents. 

Sealed  with  our  seals  and  dated  this  day  of  ,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and . 

Whereas,  lately  at  the  term,  A.  D.  19 — ,  of  the  court  of  the 

United  States  for  the  district  of  ,  in  a  suit  pending  in  said  court, 

between   the  United  States  of  America,  plaintiff,  and  ,   defendant,  a 

judgment  and  sentence  was  rendered  against  the  said  ,  and  the  said 

has  obtained  a  writ  of  error  from  the  United  States  Circuit  Court  of 

Appeals  for  the  Fifth  Circuit,  to  reverse  the  judgment  and  sentence  in  the 
aforesaid  suit,  and  a  citation  directed  to  the  said  United  States  of  America, 
citing  and  admonishing  the  United  States  of  America  to  be  and  appear 
in  the  United  States  Circuit  Court  of  Appeals  for  the  Fifth  Circuit,  at  the 
City  of  New  Orleans,  Louisiana,  thirty  days  from  and  after  the  date  of 
said  citation,  which  citation  has  been  duly  served. 

Now  the  condition  of  the  above  obligation  is  such  that  if  the  said  

shall  appear  in  the  United  States  Circuit  Court  of  Appeals  for  the  Fifth 
Circuit,  on  the  first  day  of  the  next  term  thereof,  to  be  held  at  the  city 

of  ,  on  the  first  Monday  in  ,  A.  D.   19 — ,  and  from  day  to  day 

thereafter  during  said  term,  and  from  term  to  term,  and  from  time  to 
time,  until  finally  discharged  therefrom,  and  shall  abide  by  and  obey  all 
orders  made  by  the  said  United  States  Circuit  Court  of  Appeals  for  the 
Fifth  Circuit,  in  said  cause,  and  shall  surrender  himself  in  execution  of  the 
judgment  and  sentence  appealed  from  as  said  court  may  direct,  if  the  judg- 
ment and  sentence  of  the  said court  against  him  shall  be  affirmed  by  the 

said  United  States  Circuit  Court  of  Appeals  for  the  Fifth  Circuit  then 
the  above  obligation  to  be  void,  else  to  remain  in  full  force,  virtue  and  effect. 

[Seal] 

[Seal] 

[Seal] 

Approved: 

Judge  of  the  — 


948  APPENDIX. 

8th 
37.    ORDER  OF  COURT. 

1.  Before  the  filing  of  a  petition  to  revise,  the  same  shall  be  presented 
to  the  court,  or  one  of  the  circuit  judges,  for  leave  to  file  the  same  and 
for  an  order  fixing  the  return  day  to  the  notice  required  by  law. 

2.  When  such  petition  is  accompanied  by  a  written  consent  that  the 
petition  to  revise  may  be  filed  and  a  waiver  by  the  respondent  or  re- 
spondents, or  their  counsel,  of  such  notice,  no  notice  will  be  issued.    In 
such  cases  the  case  will  be  docketed  by  the  clerk. 

9th 

37.  PHOTOGRAPH  OF  CHINESE  TO  BE  ATTACHED  TO  BAIL 

BOND. 

Whenever,  in  cases  of  deportation  of  Chinese,  the  defendant  be  ad- 
mitted to  bail  pending  appeal  before  the  bond  be  approved  and  the  party 
released  from  custody,  a  photograph  of  the  defendant  shall  be  attached 
to  said  bond. 

This  concludes  the  general  rules  in  the  9th  circuit.  Admiralty  Rules 
follow  addenda  to  rule  45,  8th  circuit. 

RULE  38  (2d,  4th,  5th  and  8th  Circuits  Only). 
2d        


PETITIONS  TO  REVIEW  IN  BANKRUPTCY. 

Petitions  to  review  orders  in  bankruptcy  filed  under  the  provisions  of 
§  24b  of  the  bankruptcy  act  must  be  filed  and  served  within  ten  days 
after  the  entry  of  the  order  sought  to  be  reviewed,  and  a  transcript  of 
the  record  of  the  proceedings  in  the  bankruptcy  court  of  the  matter  to 
be  reviewed  must  be  filed  and  the  cause  docketed  within  thirty  days 
thereafter,  but  the  judge  of  the  bankruptcy  court  may  for  good  cause 
shown  enlarge  the  time  for  filing  the  petition  or  record,  the  order  of  en- 
largement to  be  made  and  filed  with  the  clerk  of  the  District  court  before 
the  expiration  of  the  times  hereby  limited  for  filing  the  petition  and  record 
respectively,  and  to  be  transmitted  to  this  court  with  the  transcript  of 
record.  .-  ^ 

This  concludes  the  general  rules  in  the  2d  circuit.  Admiralty  Rules 
follow  addenda  to  rule  45,  8th  circuit. 

4th 

On  and  after  February  1,  1913,  the  contents  of  transcripts  of  record 
on  appeal  in  equity  and  admiralty  causes  and  on  appeal  (as  distinguished 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      949 

from  petitions  for  revision)  in  bankruptcy  causes,  shall  be  governed  by 
rules  75,  76,  and  77  of  the  Rules  of  Practice  for  the  Courts  of  Equity 
of  the  United  States,  promulgated  by  the  Supreme  Court  of  the  United 
States  November  4,  1912,  which  rules  are  as  follows:  [See  Equity  Rules, 
post.] 

This  concludes  the  rules  in  the  4th  circuit. 

5th 
38.    BANKRUPTCY. 

Petitions  to  superintend  and  revise  under  clause  "b,"  Section  24, 
Bankruptcy  Law,  shall  be  filed  within  thirty  days  from  the  date  of  the 
proceeding  sought  to  be  revised,  but  shall  not  operate  as  a  superseded* 
unless  upon  order  of  the  Judge  who  passed  the  order  in  question  or  one 
of  the  Judges  of  this  Court.  (Adopted  Feb.  25,  191C.) 

This  concludes  the  rules  in  the  fifth  circuit. 

8th 

38.    NOTICE. 

The  notice  to  be  given,  as  provided  by  law,  shall  be  issued  by  the 
clerk  of  this  court,  under  the  seal  thereof,  and  shall  be  addressed  to 
the  respondent  or  respondents  and  be  served  by  the  marshal  unless  an 
acknowledgment  or  acceptance  of  services  thereof  is  made  by  the  re- 
spondent or  respondents,  or  their  counsel. 

4th 

INSTRUCTIONS  AS  TO  TAKING  APPEALS,  SUING  OUT  WRITS 

OF  ERROR,  MAKING  UP  RECORDS,  ETC. 

METHOD  OF  TAKING  APPEALS. 

Writs  of  error  and  citations  are  no  longer  made  returnable  to  the  term 
day  of  the  appellate  court,  but  are  made  returnable  not  exceeding  forty 
days  from  the  day  of  signing  the  citation,  whether  that  day,  which  is 
the  return  rfat/,  fall  in  vacation  or  in  term  time;  and  the  record  must 
be  filed  in  the  clerk's  office  of  this  court  on  or  before  the  return  do.v, 
unless  the  time  be  enlarged  as  provided  in  §  1  of  rule  16,  and  §  6  of  rule 
23.  In  that  case  the  order  of  enlargement  must  be  filed  with  the  clerk 
of  this  court. 

Rule  11,  entitled  "Assignment  of  Errors,"  requires  the  plaintiff  in 
error,  or  appellant,  to  file  with  the  court  below,  with  his  petition  for 
the  writ  of  error  or  appeal,  an  assignment  of  errors.  Appeals  and  writs 
of  error  should  be  prayed  for  by  petition  in  writing  addressed  to  the 
court  below,  or  to  the  judge  in  vacation,  who  allows  the  writ  or  the 
appeal,  by  an  order  in  writing,  approves  the  appeal  or  supersedes  bond, 
and  signs  the  citation. 


950  APPENDIX. 

In  cases  brought  up  by  writ  of  error  from 'the  district  court,  the  clerk 
of  the  district  court,  or  the  clerk  of  this  court,  issues  the  writ  of  error, 
which  writ  fixes  the  return  day,  and  the  citation  should  bear  the  same 
return  day.  But  in  cases  of  appeal  (in  admiralty  or  in  equity),  the  cita- 
tion alone  fixes  the  return  day. 

All  appeals,  therefore,  whether  by  writ  of  error  or  appeal,  should 
hereafter  be  taken  in  the  following  manner: 

1.  Petition  in  writing  for  the  appeal,  or  writ  of  error,  addressed  to 
the  court  below,  or  the  judge  thereof  in  vacation. 

2.  The  petition  must  be  accompanied  with  an  assignment  of  errors, 
arid  a  prayer  for  reversal. 

3.  Appeal  or  writ  of  error  bond,  approval  thereof,  and  the  signing  of 
the  citation  by  the  judge  allowing  the  appeal  or  writ. 

4.  Order  in  writing  of  the  judge  allowing  the  writ  of  error  or  appeal. 

5.  Issuing  the  writ  of  error  by  the  clerk  of  the  district  court  or  of 
this  court. 

6.  In  case  it  is  desired  to  have  the  writ  of  error  issued  by  the  clerk 
of  this  court,  a  certified  copy  of  the  petition  and  order  allowing  the  writ, 
under  the  seal  of  the  court  with  a  fee  of  five  dollars  for  issuing  it,  must 
be  transmitted  to  the  clerk  of  this  court,  and  the  writ  will  be  issued 
and  forwarded  to  the  clerk  of  the  court  below. 

All  of  the  above  papers  and  proceedings  should  be  filed  by  the  clerk 
of  the  lower  court.  The  writ  Of  error  and  the  citation,  the  originals  of 
which,  after  having  been  duly  served,  must  be  certified  up  to  this  court 
as  required  by  §  7  of  rule  14.  (For  service  of  writ  of  error,  see  §  1007, 
B.  S.) 

In  cases  brought  up  by  petitions  to  superintend  and  revise  in  bank- 
ruptcy, see  rule  36. 

Rules  of  this  court,  blank  writs  of  error,  appeals  and  supersedeas 
bonds,  citations,  and  orders  of  appearance  may  be  had  of  the  clerks  of 
the  lower  courts  or  of  the  clerk  of  this  court  upon  application. 

MAKING  UP  RECORDS. 

In  making  np  a  transcript  of  the  record,  clerks  are  requested  to  make 
a  distinct  title  or  heading  to  each  paper  or  proceeding  copied  into  the 
record,  with  the  date  of  filing  the  same,  or  the  date  of  such  proceeding 
and  to  write  upon  but  one  side  of  the  paper  in  a  clear,  legible  hand. 
And  a  complete  index  of  all  the  papers  and  proceedings  should  be  made 
in  their  chronological  order  and  attached  to  the  record  at  the  beginning 
of  it.  Names  of  witnesses  should  be  written  at  the  top  of  each  page 
of  their  testimony. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OF  APPEALS.      951 


In  order  to  have  uniformity,  records  should  be  commenced  with  the 
style  and  the  term  of  the  court  at  which  the  judgment  or  decret  is  en- 
tered after  the  following  form: 

The  United  States  of  America, 

-  District  of ,  to  wit: 

At  a  District  Court  of  the  United  States  for  the  District  of  , 

begun  and  held  at  the  Court-house  in  the  city  of ,  on  the  first  Monday 

of  -    -  being  the day  of  the  tame  month,  in  the  year  of  our  Lord  one 

thousand,  nine  hundred  and . 

Present:  The  Honorable ,  District  Judge,  for  the District  of . 

Among  others  were  the  following  proceedings,  to  wit: 

A.  B.         1  In  Equity  [or] 

vs.  I  In  Admiralty  [orl 

C.  D.         J  At  Law. 

Bill  of  Complaint  [or] 
Libel  [or] 

Declaration  [or  Complaint] 

Filed ,  191—  -  [date  of  filing].** 

[Copy  same  with  all  material  indorsements,  and  any  accompanying  papers 
and  exhibits,  and  so  on  with  every  paper  or  proceeding  in  the  case.] 


As  to  the  general  order 
are  given : 

IN  EQUITY. 

I.  Style  of  Court 

Above. 

2.  Bill  of  Complaint, 

etc. 

3.  Process. 

4.  Marshal's  Return. 

5.  Answer. 

6.  Replication. 

7.  Testimony 

Exhibits  for  Com 
plainant. 

8.  Testimony 

Exhibits  foi 
fendant. 
9  Testimony 
Exhibits    in 
buttal. 
10.  Opinion. 

II.  Decree. 

12.    Assignment  of  Et 
rors. 


of  making  up  a  record,  the  following  examples 


AT  LAW. 

1.  Style  of  Court  as 

Above. 

2.  Declaration. 

3.  Process. 

4.  Marshal's  Return. 

5.  Plea    or    Demur- 

rer, etc. 

6.  Joining  of  Issue. 

7.  Impaneling  Jury. 

8.  Verdict. 

9.  Judgment. 

10.  Bill     of     Excep- 

tions. 

11.  Assignment  of  Er- 

rors. 


IN  ADMIRALTY. 

t  aa 

1.  Style  of  Court  as 

Above. 

lint, 

2.  Libel. 

3.  Process. 

4.  Marshal's  Return. 

urn. 

5.  Claim. 

6.  Stipulation. 

7.  Answer. 

and 

8.  Testimony        and 

'om- 

Exhibits          for 

Libelant. 

and 

9.  Testimony       and 

De- 

Exhibits          for 

Respondent. 

and 

10.  Testimony        and 

Ro- 

Exhibits   in   Re- 

buttal. 

11.  Opinion. 

12.  Decree. 

Er- 

13.   Assignment  of  Er- 

rors. 

952  APPENDIX. 

Form  of  Memorandum  to  be  Inserted  in  a  Common-law  Case  as  Provided  by 

Sec.  7  of  Rule  14. 

(1)  Petition  for  writ  of  error  filed day  of ,  19 — . 

(2)  Writ  of  error  granted day  of ,  19 — . 

(3)  Writ  of  error  issued day  of ,  19 — . 

(4)  Copy  of  writ  of  error  lodged  for  adverse  party  —  —  day  of ,  19 — . 

(5)  Writ  of  error  bond:  Dated day  of ,  19 — . 

Penalty  $ . 

Obligors:   . 


Condition  for  costs  and  damages  (or  for  costs). 

(6)  Citation.     Dated day  of  ,  19—. 

Eeturn.     Dated  day  of  ,  1$ — . 

Or  waiver  of  service.     Dated day  of ,  19 — . 

Note:  Similar  memorandum  mutatis  mutandis  to  be  used  in  admiralty  and 
equity  cases. 

The  petition  for  writ  of  error  or  appeal,  the  order  granting  writ  of  error 
or  appeal,  the  writ  of  error,  the  appeal  bond,  the  citation,  the  return  of 
service  or  waiver  of  service  should  not  be  copied  into  the  record,  but  the 
originals  thereof  shall  be  sent  up  and  accompany  the  transcript  of  the  record. 

In  transcribing  bills  of  exceptions  into  the  record  in  cases  at  law,  clerks 
will  carefully  inspect  such  bills  of  exceptions  and  wherever  the  words 
"here  insert,"  occur,  the  paper  or  matter  called  for  should  be  bodily  in- 
corporated into  the  record  at  that  place. 

In  making  up  records  in  admiralty  cases,  the  following  should  be  omit- 
ted (see  rule  52  of  the  Supreme  Court  in  Admiralty): 

1.  The  continuances. 

2.  All  motions,  rules,  and  orders  not  excepted  to  which  are  merely  pre- 
paratory for  trial. 

3.  The  commissions  to  take  depositions,  notices  therefor,  their  captions, 
and  certificates  of  their  being  sworn  to,  unless  some  exception  to  a  deposi- 
tion in  the  district  court  was  founded  on  some  one  or  more  of  these;  in 
which  case,  so  much  of  either  of  them  as  may  be  involved  in  the  exceptions 
»hall  be  set  out.     In  all  other  cases  it  shall  be  sufficient  to  give  the  name 
of  the  witness  and  to  copy  the  interrogatories  and  answers,  and  to  state  the 
name  of  the  commissioner  and  the  place  where  and  the  date  when  the  deposi- 
tion was  sworn  to,  and  in  copying  all  depositions  taken  on  interrogatories, 
the  answer  shall  be  inserted  immediately  following  the  question. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      953 

FORM  FOB  THE  COVER  OP  A  TRANSCRIPT  OF  THE  RECORD. 

TRANSCRIPT  OF  THE  RECORD. 

United  States  Circuit  Court  of  Appeal*. 

Fourth  Circuit. 

No.  . 

,  Plaintiff  in  Error,  or  Appellant,  or  Petitioner, 

Tersus 
— ,  Defendant  in  Error,  or  Appellee,  or  Respondent. 

In  error  to  (or  appeal  from  or  on  petition  for  review  from)   the  District 
Court  of  the  United  States  for  the District  of ,  at . 

DOCKETING  CASES  AND  PRINTING  RECORDS. 

Upon  a  record  being  filed,  the  case  is  docketed  and  is  put  upon  the 
calendar  for  argument  at  the  next  term,  or  adjourned  term,  occurring 
thereafter,  provided  the  record  has  heen  printed  and  copies  thereof  are 
delivered  to  opposing  counsel  twenty  days  before  the  said  term  or  ad- 
journed term,  as  provided  in  sec.  2,  rule  17. 

Clerk  or  counsel  transmitting  a  record  to  this  court  must  accompany 
the  same  with  an  order  of  appearance  for  the  appellant  or  plaintiff  in 
error,  and  also  with  a  deposit  of  $26  for  account  of  his  costs  to  accrue 
in  this  court,  and  the  names  and  addresses  of  the  attorneys  on  both  sides. 

The  clerk  of  this  court  will  immediately  upon  a  transcript  of  the 
record  being  filed  under  rule  23,  send  to  the  counsel  an  estimate  of  the 
cost  of  printing,  supervising  fees,  etc.,  which  amount  must  be  deposited, 
either  in  cash  or  by  New  York  exchange,  with  the  clerk  within  ten  days 
after  notice.  See  rule  23. 

It  is  important  that  records  should  be  made  up  and  forwarded  to  this 
office  as  promptly  as  possible  after  the  appeal  or  writ  of  error  is  al- 
lowed, and  not  held  until  the  near  approach  of  the  next  term. 

Defendants  in  error,  appellees,  or  respondents  are  required,  at  the 
time  of  entering  their  appearance  by  attorney,  to  make  a  deposit  of  $25 
for  account  of  costs  to  be  incurred  by  them  in  this  court. 

Deposits  for  costs  are  required  on  both  sides  of  a  case,  and  the  sur- 
plus of  such  deposits,  if  any,  will  be  refunded  to  each  side  making  the 
deposits  when  the  case  is  decided  and  at  the  time  the  mandate  is  trans- 
mitted to  the  lower  court.  The  winning  party  collects  the  coats  incurred 
by  and  adjudged  to  him,  together  with  his  attorney's  docket  fee,  in  the 
lower  court  upon  the  mandate  and  not  from  this  office.  The  mandate 
will  show  the  amount  the  winning  party  is  entitled  to  to  collect. 


954  APPENDIX. 


RULE  39  (2d  and  8th  Circuit*  Only). 
2d      8th       

39.  ADDING  CASES  TO  GENERAL  CALENDAR. 

When  the  record  in  any  cause  has  been  printed  and  filed  with  the 
clerk,  the  parties  may  file  a  stipulation  that  the  cause  be  added  to  the 
general  calendar.  If  such  stipulation  be  filed  prior  to  the  first  Monday 
in  March  in  any  term,  the  cause  will  be  added  to  the  general  calendar 
for  that  term  without  a  motion  therefor  being  made  in  open  court. 
[This  ends  the  general  rules  in  the  2d  circuit.  The  Admiralty  Rules, 
2d  circuit,  appeal-  post.] 

RESPONSE. 

The  response  to  the  petition,  when  the  respondent  elects  to  make  a 
written  response,  shall  be  filed  within  thirty  days  after  the  service  of  the 
notice  of  the  filing  of  a  waiver  thereof. 


RULE  40  (8th  Circuit  Only). 
—      8th 


PRINTING  OF  RECORD. 

1.  The  clerk  shall  cause  the  petition  and  exhibits  thereto,  if  any,  and 
the  order,  notice,  and  response,  if  any,  to  be  printed  as  soon  as  con- 
venient after  the  response  is  filed  or  the  time  for  filing  such  response  has 
expired  and  shall  distribute  the  printed  copies  of  same  to  counsel  for 
the  respective  parties,  as  soon  as  the  same  are  printed. 


RULE  41  (8th  Circuit  Only). 
—      8th 


BRIEFS  AND  ARGUMENTS. 

Twenty  copies  of  the  brief  and  argument  in  behalf  of  the  petitioner 
shall  be  printed  and  filed  twenty  days  before  the  day  set  for  the  hearing 
and  twenty  copies  of  the  brief  and  argument  for  the  respondent  or  re- 
spondents shall  be  printed  and  filed  eight  days  before  the  day  of  hearing. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COUBTS  OP  APPEALS.      955 

RULE  42  (8th  Circuit  Only). 


8th 


HEARING. 

1.  Petitions  to  revise  filed  in  vacation,  shall  be  assigned  by  the  clerk 
for  hearing  in  their  regular  order  at  the  next  session  or  term  of  the 
court  in  the  same  manner  as  appeals  and  writs  of  error  in  other  cases. 

2.  Petitions  to  revise  filed  during  a  session  of  the  court,  when  a  suffi- 
cient showing  or  urgency  is  presented,  may  be  set  for  hearing  at  that 
term  and  upon  such  terms  and  conditions  as  the  court  may  direct. 

3.  Petitions  to  revise  assigned  by  the  clerk  in  their  regular  order  as 
provided  in  section  one  of  this  rule,  when  such  assignment  is  for  a  day 
near  the  close  of  the  session,  may  be  advanced  by  order  of  the  court  and 
set  for  an  earlier  day,  upon  good  cause  shown  therefor  by  either  of  the 
parties. 

RULE  43  (8th  Circuit  Only). 
_       —         8th      

COSTS. 

1.  The  costs  and  fees  now  provided  by  law  in  cases  upon  appeal  or 
writ  of  error,  shall,  so  far  as  the  same  are  applicable,  be  taxed  on  peti- 
tions to  revise. 

2.  Upon  the  determination  of  a  petition  to  revise  such  order  as  to 
costs  will  be  made  as  the  court  may  deem  necessary. 

RULE  44  (8th  Circuit  Only). 
8th      

PROCEDENDO. 

1.  In  all  cases  on  a  petition  to  revise  wherein  the  action  or  decree  of 
the  district  court,  complained  of,  is  disapproved  by  this  court,  the  clerk 
shall,  at  the  expiration  of  thirty  days  from  and  after  the  date  of  enter- 
ing the  decree  in  this  court,  issue  process  in  the  nature  of  a  procedendo 
to  the  said  district  court  for  the  purpose  of  informing  such  court  of  the 
proceedings  in  this  court,  so  that  further  proceedings  may  be  had  in 
such  district  court  in  conformity  with  the  decree  of  this  court. 

2.  In  all  cases  on  petition  to  revise,  wherein  the  action  or  decree  of 
the  district  court,  complained  of,  is  approved  and  confirmed,  or  said 
petition  dismissed,  by  this  court,  the  clerk  shall  at  the  expiration  of 
thirty  days  certify  a  copy  of  such  decree  to  the  district  court. 


956  APPENDIX. 

EULE  45  (8th  Circuit  Only). 


8th 


APPEALS  AND  WRITS  OF  ERROR  IN  BANKRUPTCY  CASES. 

1.  The  appeals  and  writs  of  error  provided  for  by  §  25  of  the  bank- 
ruptcy law,  approved  July  1st,  1898,  shall  be  governed  by  the  same  rules 
and  regulations  as  to  costs  and  procedure  as  are  provided  by  this  court 
for  appeals  and  writs  of  error  in  other  cases. 

ADDENDA. 

8th 

[Form  of  Writ  of  Error  for  use  in  the  United  States  Circuit  Court   of 
Appeals,  Eighth  Circuit.] 

United  States  of  America,  as. 

The  President  of  the  United  States  of  America, 

To  the  Honorable  Judges  of  the  1 Greeting: 

Because;  in  the  records  and  proceedings,  as  also  in  the  rendition  of  the 

judgment  of  a  plea  which  is  in  the  said Court,  before  you,  at  the  

Term,   19 — ,  thereof,  between   2  a  manifest   error  hath   happened,   to 

the  great  damage  of  the  said  3 as  by complaint  appears. 

We  being  willing  that  error,  if  any  hath  been,  should  be  duly  corrected, 
and  full  and  speedy  justice  done  to  the  parties  aforesaid  in  this  behalf,  do 
command  you,  if  judgment  be  therein  given,  that  then,  under  your  seal,  dis- 
tinctly and  openly,  you  send  the  record  and  proceedings  aforesaid,  with  all 
things  concerning  the  same,  to  the  United  States  Circuit  Court  of  Appeals, 
for  the  Eighth  Circuit,  together  with  this  writ,  so  that  you  have  the  said 
record  and  proceedings  aforesaid  at  the  City  of  St.  Louis,  Missouri,  and  filed  in 
the  office  of  the  Clerk  of  the  United  States  Circuit  Court  of  Appeals,  for  the 

Eighth  Circuit,  on  or  before  the  * day  of  ,  19 — ,  to  the  end  that  the 

record  and  proceedings  aforesaid  being  inspected,  the  United  States  Circuit 
Court  of  Appeals  may  cause  further  to  be  done  therein  to  correct  that  error, 
what  of  right,  and  according  to  the  laws  and  customs  of  the  United  States, 
should  be  done. 

1  Here  insert  correct  name  of  the  court  to  which  the  writ  is  addressed 
and  whose  judgment  is  to  be  reviewed. 

2  Here  insert  correct  style  of  cause  showing  who  was  plaintiff  and  who 
defendant  in  court  below. 

'  3  Here  insert  name  of  party  who  sues  out  writ  of  error. 

4  Rule  XIV,  subdivision  5,  requires  writs  of  error  and  appeals  to  be  made 
returnable  sixty  days  after  citation  is  signed. 

This  blank  must  be  filled  accordingly,  naming  a  day  not  more  than  sixty 
days  after  the  date  of  the  citation. 


RULES  OP  THE  UNITED  STATES  CIRCUIT  COURTS  OP  APPEALS.      957 

Witness,  the  Honorable  ,  Chief  Justice  of  the  United  States,  this  — — 

day  of  in  the  year  of  our  Lord  one  thousand  nine  hundred  . 

Issued  at  office  in with  the  seal  of  the  & and  dated  as  aforesaid. 

,  Clerk  of 

Allowed  by 

» 

Judge. 

[Form  of  Return  to  be  indorsed  on  Writ  of  Error  by  the  Clerk  of  the  Court 
to  which  the  Writ  is  addressed.] 

United  States  of  America, — ss. 

In  obedience  to  the  command  of  the  within  Writ,  I  herewith  transmit  to 
the  United  States  Circuit  Court  of  Appeals,  a  duly  certified  transcript  of 
the  record  and  proceedings  in  the  within  entitled  case,  with  all  things  con- 
cerning the  same. 

In  Witness  Whereof,  I  hereto  subscribe  my  name  and  affix  the  seal  of6 

,  Clerk  of . 

6  This  blank  should  be  so  filled  as  to  show  whether  the  writ  is  issued 
by  the  clerk  of  a  United  States  district  court  or  by  the  clerk  of  the  circuit 
court  of  appeals. 

«  Here  describe  the  court  to  which  the  writ  is  addressed. 

[Form  of  Citation.] 
United  States  of  America. 
To ,  Greeting: 

You  are  hereby  cited  and  admonished  to  be  and  appear  in  the  United 

States  Circuit  Court  of  Appeals  for  the Circuit,  at  the  City  of  St.  Louis, 

Missouri,  sixty  days  from  and  after  the  day  this  citation  bears  date,  pursuant 

to1  filed  in  the  Clerk's  Office  of  the  2  —    -  wherein  —   —  is  3 and 

you  are  * ,  to  show  cause,  if  any  there  be,  why  the  5 rendered  against 

the  said  « as  in  said  7  —   —  mentioned  should  not  be  corrected,  and  why 

speedy  justice  should  not  be  done  the  parties  in  that  behalf. 

Witness,  the  Honorable ,  Judge  of  -   -  this day  of ,  A.  D. 

19—. 

,  Judge  of . 

1  Insert  (a  writ  of  error)  or  (an  appeal  allowed  and). 

2  Insert  name  of  court  to  which  writ  of  error  is  addressed,  or  from  which 
appeal  is  allowed. 

8  Insert  plaintiff  in  error  or  appellant. 
4  Insert  defendant  in  error  or  appellee. 
6  Insert  judgment  or  decree. 
«  Insert  plaintiff  in  error  or  appellant. 
T  Insert  writ  of  error  or  appeal. 


958  APPENDIX. 

[Form  of  Supersedeas  or  Cost  Bond.] 
KNOW  ALL  MEN  BY  THESE  PRESENTS: 

That  we,  are  held  and  firmly  bound  unto  in  the  full  and  jiwt 

sum  of to  be  paid  to  the  said heirs,  executors,  administrators,  suc- 
cessors or  assigns,  to  which  payment  well  and  truly  to  be  made,  we  bind 
ourselves,  our  heirs,  executors  and  administrators,  successors  or  assigns, 
jointly  and  severally  by  these  presents.  Sealed  with  our  seals,  and  dated 

this day  of  ,  in   the  year  of  our  Lord   one  thousand  nine  hun 

dred . 

WHEREAS,  lately  at  the  term  of  the  in  a  suit  depending  in  said 

Court  between ,  plaintiff,  and ,  defendant, was  rendered  against 

the  said  and  the  said  has  obtained  of  the  said  Court  to  re- 
verse the in  the  aforesaid  suit,  and  a  citation  directed  to  the  said  — — 

citing  and  admonishing to  be  and  appear  in  the  United  States  Circuit 

Court  of  Appeals  for  the Circuit,  at  the  City  of  St.  Louis,  Missouri,  sixty 

days  from  and  after  the  date  of  said  citation. 

Now,  the  condition  of  the  above  obligation  is  such,  that  if  the  said  

shall  prosecute  said to  effect,  and  answer  all  damages  and  costs  if 

fail  to  make  good  plea,  then  the  above  obligation  to  be  void,  else  to 

remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  presence  of 

(Seal) 

(Seal) 

• (Seal) 

Approved  by 

(The  foregoing  bond  and  citation  is  adapted  for  appeals  in  equity  cases 
as  well  as  in  cases  of  writs  of  error  in  actions  at  law.) 

[Form  of  Appearance  Bond  on  Writ  of  Error  in  Criminal  Cases.] 
KNOW  ALL  MEN  BY  THESE  PRESENTS  : 

That  we, as  principal,  and as  sureties,  are  held  and  firmly  bound 

unto  the  United  States  of  America  in  the  full  and  just  sum  of Dollars, 

to  be  paid  to  the  United  States  of  America,  to  which  payment  well  and 
truly  to  be  made  we  bind  ourselves,  our  heirs,  executors  and  administrators 
jointly  and  severally  by  these  presents. 

Sealed  with  our  seals  and  dated  this day  of in  the  year  of  our 

Lord,  One  Thousand  Nine  Hundred . 

WHEREAS,  lately  at  the  Term,  A.  D.  19 — ,  of  the Court  of  the 

United  States  for  the  District  of  ,  in  a  suit  depending  in   said 

Court  between  the  United  States  of  America,  plaintiff,  and ,  defend- 
ant, a  judgment  and  sentence  was  rendered  against  the  said  and  the 

said  ha —  obtained  a  writ  of  error  from  the  United  States  Circuit  Court 


RULES  OF  THE  UNiTKy  STATES  CIRCUIT  COURTS  OP  APPEALS.      939 

of  Appeals  for  the  Eighth  Circuit,  to  reverse  the  judgment  and  sentence  in  the 
aforesaid  suit,  and  a  citation  directed  to  the  said  United  States  of  America, 
citing  and  admonishing  the  United  States  of  America  to  be  and  appear  in 
the  United  States  Circuit  Court  of  Appeals  for  the  Eighth  Circuit,  at  the 
city  of  St.  Louis,  Missouri,  sixty  days  from  and  after  the  date  of  said  citation, 
which  citation  has  been  duly  served. 

Now  the  condition  of  the  above  obligation  is  such  that  if  the  said  

shall  appear  either  in  person  or  by  attorney  in  the  United  States  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit  on  such  day  or  days  as  may  be  ap- 
pointed for  the  hearing  of  said  cause  in  said  Court  and  prosecute  his  said 
writ  of  error  and  shall  abide  by  and  obey  all  orders  made  by  the  United 
States  Circuit  Court  of  Appeals  for  the  Eighth  Circuit  in  said  cause,  and  shall 
surrender  himself  in  execution  of  the  judgment  and  sentence  appealed  from 
as  said  Court  may  direct,  if  the  judgment  and  sentence  against  him  shall 
be  affirmed  or  the  writ  of  error  or  appeal  is  dismissed;  and  if  he  shall 

appear  for  trial  in  the Court  of  the  United  States  for  the District 

of on  such  day  or  days  as  may  be  appointed  for  a  retrial  by  said  

Court  and  abide  by  and  obey  all  orders  made  by  said  Court  provided  the 
judgment  and  sentence  against  him  shall  be  reversed  by  the  United  States 
Circuit  Court  of  Appeals  for  the  -  -  Circuit;  then  the  above  obligation 
to  be  void,  otherwise  to  remain  in  full  force,  virtue  and  effect. 

(Seal) 

(Seal) 

(Seal) 

Approved : 

,  Judge  of  the . 


RULES  OF  THE  CIRCUIT  COURTS  OP 
APPEALS  IN  ADMIRALTY. 


In  the  first,  third,  fourth,  fifth,  seventh,  and  eighth  circuits  these  rules 
are  the  same  as  provided  in  General  Admiralty  Rule  No.  52  of  the  su- 
preme court,  with  the  addition  in  the  first  circuit  of  §§  6  and  7  of  rule 
14  of  the  C.  C.  A. 

In  the  second  and  ninth  circuits  rules  1,  2,  3,  4,  5,  6,  8,  10,  and  11  are 
the  same,  rules  7,  9  and  12  are  different,  as  shown  below,  and  in  the 
second  circuit,  rules  13  to  19,  inclusive,  are  additional  to  the  rules  of  the 
ninth  circuit. 

EULE  l.« 

2d       ^— .          9th 

APPEALS  AND  NEW  PLEADINGS. 

An  appeal  to  the  Circuit  Court  of  Appeals  shall  be  taken  by  filing  in 
the  office  of  the  clerk  of  the  District  Court,  and  serving  on  the  proctor 
of  the  adverse  party  a  notice  signed  by  the  appellant  or  his  proctor  that 
the  party  appeals  to  the  Circuit  Court  of  Appeals  from  the  decree  com- 
plained of. 

The  appeal  shall  be  heard  on  the  pleadings  and  evidence  in  the  Dis- 
trict Court,  unless  the  Appellate  Court,  on  motion,  otherwise  order. 

*This  rule  so  far  modifies  rule  11  of  the  General  Rules  that  a  petition  for 
an  appeal  and  the  allowance  thereof  is  not  required  in  an  admiralty  case, 
nor  is  the  assignment  of  errors  required  to  be  filed  with  notice  of  appeal. 
The  assignment  of  errors  must,  however,  be  sent  up  to  the  »pi>»'llnto  court 
with  the  apostles,  as  required  in  rule  4  of  the  Admiralty  Rules.  (Kenney 
v.  Louie,  No.  939.  Motion  to  dismiss  appeal  denied,  May  6,  1903.) 

RULE  2. 

2d       9th 

NOTICE   AND  BOND. 

Sec.  1.  When  a  notice  of  appeal  is  served,  the  appellant  shall  file  in 
the  clerk's  office  of  the  District  Court  a  bond  for  costs  of  the  appeal, 


962  APPENDIX. 

with  sufficient  surety  in  the  sum  of  $250,  conditioned  that  the  appellant 
shall  prosecute  his  appeal  to  effect  and  pay  the  costs,  if  the  appeal  is 
not  sustained.  Such  security  shall  be  given  within  ten  days  after  filinc 
the  notice,  or  the  appeal  shall  be  deemed  abandoned,  and  the  decree  of 
the  court  below  enforced,  unless  otherwise  ordered  by  a  judge  of  this 
court. 

Sec.  2.  And  if  the  appellant  desires  to  stay  the  execution  of  the  de- 
cree of  the  court  below,  the  bond  which  he  shall  give  shall  be  a  bond  with 
sufficient  surety  in  such  further  sum  as  the  judge  of  the  District  Court 
or  a  judge  of  this  ccmrt  shall  order,  conditioned  that  he  will  abide  by 
and  perform  whatever  decree  may  be  rendered  by  this  court  in  the  cause, 
or  on  the  mandate  of  this  court  by  the  court  below. 

Sec.  3.  The  appellant  shall,  on  filing  either  of  such  bonds,  give  notice 
of  such  filing,  and  of  the  names  and  residences  of  the  sureties,  and  if 
the  appellee,  within  two  days,  excepts  to  the  sureties  they  shall  justify, 
on  notice,  within  two  days  after  such  exception. 

RULERS. 
2d       9t* 

REVIEW  IN  PART  ONLY. 

The  appellant  may  also,  at  his  option,  state  in  his  notice  of  appeal  that 
he  desires  only  to  review  one  or  more  questions  involved  in  the  cause, 
which  questions  must  be  clearly  and  succinctly  stated;  and  he  shall  be 
concluded  in  this  behalf  by  such  notice,  and  the  review  upon  such  an 
appeal  shall  be  limited  to  such  question  or  questions. 

RULE  4. 
2d       :    7^-  —       9th 

APOSTLES  ON  APPEAL  TO  CONTAIN. 

Sec.  1.  The  apostles,  on  an  appeal  to  this  court,  shall,  in  cases  where 
a  general  notice  of  appeal  is  served,  consist  of  the  following: 

(1)  A  caption  exhibiting  the  proper  style  of  the  court  and  the  title  of 
the  cause,  and  a  statement  showing  the  time  of  the  commencement  of  the  , 
suit;  the  names  of  the  parties,  setting  forth  the  original  parties  and 
those  who  have  become  parties  before  the  appeal,  if  any  change  has  taken 
place ;  the  several  dates  when  the  respective  pleadings  were  filed,  whether 
or  not  the  defendant  was  arrested,  or  bail  taken,  or  properly  attached, 


RULES  IN  ADMIRALTY.  963 

or  arrested  and  if  so,  an  account  of  the  proceedings  thereunder;  the  time 
when  the  trial  was  had,  and  the  name  of  the  judge  hearing  the  same; 
whether  or  not  any  question  was  referred  to  a  commissioner,  or  commis- 
sioners, and  if  so,  the  result  of  the  proceedings  and  report  thereon ;  the 
date  of  the  entry  of  the  interlocutory  and  final  decree;  and  the  date 
when  the  notice  of  appeal  was  filed. 

(2)  All  the  pleadings,  with  the  exhibit  annexed  thereto. 

(3)  All  the  testimony  and  other  proofs  adduced  in  the  cause. 

(4)  The  interlocutory  decree  and  any  order  of  the  court  which  appel- 
lant may  desire  to  have  reviewed  on  the  appeal. 

(5)  Any  report  of  a  commissioner  or  commissioners  to  which  excep- 
tion may  have  been  taken,  with  the  order  or  orders  of  the  court  respect- 
ing the  same,  and  the  exceptions  to  the  report,  and  so  much  of  the  testi- 
mony taken  in  the  proceedings  as  may  be  necessary  to  a  review  of  the 
exceptions. 

(6)  All  opinions  of  the  court,  whether  upon  interlocutory  questions  or 
finally  deciding  the  cause. 

(7)  The  final  decree,  and  the  notice  of  appeal;  and 

(8)  The  assignments  of  error. 

Sec.  2.  All  other  papers  shall  be  omitted  unless  otherwise  ordered  by 
the  judge  who  heard  the  cause. 

Sec.  3.  Where  the  appellant  shall  appeal  specially  and  seek  only  to 
review  one  or  more  questions  involved  in  the  cause,  the  apostles  may.  by 
stipulation  between  the  proctors  for  the  respective  parties,  contain  onlv 
such  papers  and  proceedings  and  evidence  as  are  necessary  to  review 
the  questions  raised  by  the  appeal. 

RULE  5. 
—       2d       i    • 8th 


CERTIFYING  RECORDS. 

The  appellant  shall,  within  thirty  days  after  giving  notice  of  appeal, 
procure  to  be  filed  in  this  court  the  apostles  certified  by  the  clerk  of  the 
district  court,  or  in  case  of  a  special  appeal,  the  stipulated  record,  with 
the  certification  by  the  said  clerk  of  all  papers  contained  therein  on  file 
in  his  office. 


964  APPENDIX. 

RULE  6. 
-   2d   -   -   -   -   -   - 

IF  APPEARANCE  OF  APPELLEE  NOT  ENTERED. 


9th 


If  the  appellee  does  not  cause  his  appearance  to  be  entered  in  this 
court  within  ten  days  after  service  on  his  proctor  of  notice  that  the 
apostles  are  filed  in  this  court,  the  appellant  may  proceed  ex  parte  in  the 
cause,  and  have  such  decree  as  the  nature  of  the  case  may  demand. 


RULE  7. 

-  2d      -       -      -       -       -       -       9th 

NEW  ALLEGATIONS,  ETC. 

Upon  sufficient  cause  shown,  this  court,  or  any  judge  thereof,  may 
allow  either  appellant  or  appellee  to  make  new  allegations  or  pray  dif- 
ferent relief  or  interpose  a  new  defense,  or  take  new  proofs.  ["Applica- 
tions for  such  leave  must  be  made  within  fifteen  days  after  the  filing  of 
the  apostles  and  upon  at  least  four  days'  notice  to  the  adverse  party," 
2d  circuit.]  ["Application  for  such  leave  may  be  made  at  any  time  after 
the  perfecting  of  the  appeal  to  this  court,  and  within  fifteen  days  after 
the  filing  in  this  court  of  the  apostles,  and  upon  at  least  four  days'  notice 
to  the  adverse  party  or  his  attorney  of  record,"  9th  circuit.] 

RULE  8. 

-  2d       -       -      -       -       -       -       9th 


NEW  PLEADINGS— NEW  TESTIMONY. 
»  . 

If  leave  be  granted  to  make  new  allegations,  pray  different  relief  or 
interpose  a  new  defense,  the  moving  party  shall,  within  ten  days  there- 
after, serve  such  new  pleading,  duly  verified,  on  the  adverse  party,  who 
shall,  if  such  pleading  be  a  libel,  within  twenty  days  answer  on  oath. 

If  leave  be  given  to  take  new  testimony,  the  same  may  be  taken  and 
filed  within  thirty  days  after  the  entry  of  the  order  granting  such  leave, 
and  the  adverse  party  may  take  and  file  counter  testimony  within  twenty 
days  after  such  filing. 


BULES  IN  ADMIRALTY.  965 

RULE  9. 

2d       tee  below 

NEW  TESTIMONY— HOW  TAKEN. 

Such  testimony  shall  be  taken  by  deposition  before  any  United  States 
commissioner,  or  notary  public,  upon  reasonable  notice  in  writing  given 
to  the  opposite  party;  or  by  commission  issued  out  of  this  court  with 
interrogatories  annexed.  Upon  proper  cause  shown,  the  court  may 
grant  an  open  commission. 

9th 

Such  testimony  shall  be  taken  by  deposition  before  the  clerk  of  this 
court,  or  any  United  States  commissioner,  or  any  clerk  of  a  district 
court  of  the  United  States,  or  any  notary  public  upon  reasonable  notice, 
in  writing,  given  to  the  opposite  party  or  his  attorney  of  record,  either 
in  this  court  or  in  the  court  below,  which  notice  must  state  the  name 
or  names  of  the  witness  or  witnesses  and  the  time  and  place  of  taking 
his  or  their  deposition  or  depositions;  or  by  commission  issued  out  of 
this  court  with  interrogatories  annexed.  Upon  sufficient  cause  shown, 
the  court  may  grant  an  open  commission. 

RULE  10. 

2d       —  —       9th 

PRINTING  NEW  PLEADINGS  AND  TESTIMONY. 
If  new  pleadings  are  filed  or  testimony  taken  in  this  court,  the  same 
shall  also  be  printed  and  furnished  by  the  clerk,  as  in  the  23d  General 
Rule  provided. 

RULE  11. 

2d       —  —       9th 

MOTIONS. 
All  motions  shall  be  made  upon  at  least  four  days'  notice. 

RULE  12. 

2d       —  —      ••«  below 

WRIT  OF  INHIBITION. 

A  writ  of  inhibition  may  be  awarded  by  this  court  on  motion  of  the 
appellant  to  stay  proceedings  in  the  court  below  when  circumstances 
require. 


966  APPENDIX. 

9th 
EXTENSION  OF  TIME. 

The  time  specified  in  the  foregoing  rules  for  any  proceeding  may  be 
extended  by  order  of  a  judge  of  this  court. 

These  rules  shall  go  into  effect  on  the  first  Monday  of  October,  1900. 

RULE  13. 
2d       


MANDAMUS. 

A  mandamus  may,  in  like  manner,  be  obtained  to  compel  a  return  of 
the  apostles  when  unreasonably  delayed  by  the  clerk,  or  court  below. 


RULE  14. 
2d      - 


CASES  TO  BE  PLACED  ON  DOCKET. 

Each  case  shall  be  placed  on  the  docket  as  soon  as  the  printing  of 
the  apostles  is  completed  by  the  clerk. 


RULE  15. 
2d      

BRIEFS. 

Sec.  1.  Counsel  for  the  appellant  shall  file  with  the  clerk  of  this 
court,  at  least  twenty  days  before  the  case  is  called  for  argument  ten 
copies  of  a  printed  brief,  and  shall  at  the  same  time  serve  two  copies 
thereof  on  the  proctors  of  record,  or  on  the  counsel  engaged  upon  the 
opposite  side.  This  brief  shall  contain  in  order  here  stated : 

(1)  A  statement  of  the  nature  of  the  appeal,  the  court  from  which  the 
appeal  is  taken,  and  a  concise  abstract  or  statement  of  the  case,  pre- 
senting succinctly  the  questions  involved,  and  the  manner  in  which  they 
were  raised. 

(2)  If  the  pleadings  have  been  amended  in  this  court  or  new  proofs 
have  been  taken,  it  shall  be  stated  what  amendments  have  been  made 
and  in  what  respect  the  new  proofs  have  changed,  or  tended  to  change, 
fhe  case  as  made  in  the  court  below. 


RULES  IN  ADMIRALTY.  967 

i      * 

(3)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the 
points  of  law  or  fact  to  be  discussed,  with  a  reference  to  the  folios  of 
the  record  or  to  the  numbers  of  the  questions,  and  the  authorities  relied 
upon  in  support  of  each  point. 

Sec.  2.  The  counsel  for  the  appellee  shall  file  with  the  clerk  of  the 
court  ten  printed  copies  of  his  brief  and  serve  two  copies  thereof  at 
least  ten  days  before  the  case  is  called  for  argument.  His  brief  shall 
be  of  a  like  character  with  that  required  of  the  appellant,  and  in  case 
new  proofs  are  taken  on  behalf  of  the  appellee,  the  brief  shall  so  state 
and  wherein  the  new  proofs  have  changed  the  case  as  made  in  the  court 
below. 

Sec.  3.  The  reasonable  expense  of  printing  briefs  shall  be  an  item 
of  taxable  costs. 

RULE  16. 
-   2d       -       -       — 

MANDATES. 

The  decrees  of  this  court  shall  direct  that  a  mandate  issue  to  the  court 
below. 

RULE  17. 


EXTENSION  OF  TIME. 

The  time  specified  in  the  foregoing  rule  for  any  proceeding  may  be 
extended  by  order  of  a  judge  of  this  court. 


RULE  18. 


WHEN  RULES  OF  DISTRICT  COURTS  TO  APPLY. 

In  all  matters  in  civil  causes  of  admiralty  and  maritime  jurisdiction 
not  expressly  provided  for  by  the  foregoing  rules  of  this  court,  the  rules 
of  practice  of  the  district  court  of  the  district  in  which  the  cause  was 
decided,  being  in  force  at  the  time  (not  being  inconsistent  with  these 
rules),  will  be  adopted  so  far  as  may  seem  proi>cr. 


968  APPENDIX. 

RULE  19. 
2d   —   

WHAT  GENERAL  RULES  SHALL  BE  DEEMED  ADMIRALTY 

RULES. 

The  following  of  the  General  Rules  of  this  court,  and  no  others,  shall 
be  deemed  admiralty  rules,  viz.:  Rules  3,  4,  5,  6,  7,  9,  11,  12;  sec.  4  of 
rule  14;  rules  15,  16,  17,  18, 19,  20,  21,  22,  23;  sec.  5  of  General  Rule  24; 
rules  25,  26,  27,  28,  29;  sec.  4  of  rule  30;  rules  31,  32,  34,  36  and  37. 


EQUITY  RULES  IN  FORCE  FEBRUARY  1, 
1913,  COMPARED  WITH  OLD  EQUITY 
RULES. 

(Official  Index  at  end  of  Rules.     Also  Indexed  in  General  Index  showing 
Sections  of  Text  where  Treated. 

Numerical  Table  of  Rules  referring  to  sections  of  text  where  roles  are 
quoted  or  referred  to,  may  be  found  at  p.  1035.  pott. 


EQUITY   RULES. 


971 


TABLE  OF  OLD  EQUITY  RULES  SHOWING  WHAT  HAVE  BEEN  IN- 
CORPORATED AND  WHAT  OMITTED  IN  THE  NEW  EQUITY 
RULES. 

Those  marked  with  a  star  (*)  are  identical  with  the  new  role  indicated. 


Old  New 

1—  1  par.  1. 

2 —  2  and  See  6. 

3—  1  par.  2. 
4_  4-3-6. 
5—  5. 

6 — Out  See  6. 

7 —  7*  substantially. 

8—  8. 

9—  9* 

10—11'  substantially. 

11—12. 

12—12. 

13—13* 

14—14*  substantially. 

15—15* 

16— Out  See  3. 

17— Out  See  16  and  18. 

18—16  and  17  and  58. 

19—17. 

20 — 25  par.  1. 

21—25  pars  1-2-3-5. 

22—25  par.  4. 

23 — 25  par.  5. 

24—24. 

25 — Out. 

26—21. 

27 — Out  See  2L 

28— 2S  and  19. 

29—28  and  19. 

30 — Out  See  19. 

31— Out  Sec  29. 

32— Out  See  29. 

33— Out  See  29. 

34 — Out  See  29. 

35— Out  See  29  and  28. 

36— Out  See  29. 

37— Out  See  29. 

38— Out  See  29. 

39— Out  See  29. 

40— See  58. 

41— Out  See  58. 

42— Out  See  58. 

43— Out  See  58. 

44 — Out  See  58. 

45— Out  See  31. 

46 — 32*  with  time  changed. 

47—39. 


Old  New 

48— 3S. 

49—37. 

50— 41* 

51— 42* 

52—43. 

53 — 44. 

54—40. 

55— Out  See  71. 

56—45. 

57—34. 

58—35* 

59—36. 

60 — Out  See  19  and  30. 

61— Abolished  33  and  21. 

62— Out. 

63 — Out  See  33. 

64 — Out  See  33  and  part  58. 

65— Out. 

66 — Abolished  31. 

67— See  58  and  46-49-51-52-53-47 

68—54. 

69—55  and  47. 

70—47  and  54. 

71— Out  See  58. 

72— Out  See  30  and  58. 

73— Out. 

74—59. 

75_60» 

76—61* 

77—62. 

78—52  See  4«. 

79—63. 

80—64* 

81—65* 

82—68. 

53 — 66*  with  time  changed. 

84—67. 

85—72. 

86—71* 

87—70* 

88—69. 

89—79. 

00— Out  See  79. 

91—78* 

92—10*  substantially. 

93—74. 

94—27. 


972 


APPENDIX. 


CORRESPONDING  TABLE  OF  NEW  RULES  SHOWING  FROM  WHERE 
DRAWN  IN  THE  OLD  RULES  AND  WHAT  ARE  ENTIRELY  NEW. 
THOSE  MARKED  WITH  A  STAR  (*)  ARE  IDENTICAL  WITH  THE 
OLD  RULE. 


New  Old 
Par.  1—1-1. 
Par.  2—1-3. 

2—  2. 

3 —  new.     See  4. 

4—  4. 

5—  5. 

6 —  new. 

7 —  7*  substantially. 

8 —  pt.  new.  8. 

9—  9* 

10—92*  substantially. 

11—10*  substantially.       v 

12—11  and  12. 

13—13* 

14 — 14*  substantially. 

15—15* 

16—18  first  part. 

17—19. 

18— New. 

19 — 28,  29  and  60  supersedes  30. 

20 — new. 

21— new.  See  26,  27,  61. 

22— new. 

23 — new. 

24 — partly  new.     24. 

25 

Par.  1—20. 

"     2—21. 

"     3,  new. 

"     4—22  pt. 

"     5— pt.  21  and  23. 
26 — new. 
27—94. 

28-^28'  1st  pt.  29  1st  pt. 
29 — new  superseding  31  to  40. 
30 — new.     See  60.     Supersedes  72. 
31 — new  superseding  45  and  66. 
32 — 46*  with  time  changed. 
33 — new  superseding  61,  63,  64. 
34 — new  superseding  57. 
35—58* 
36—59. 

37 — new  superseding  49. 
38—48. 


New  Old 

39 — 47. 

40—54. 

41—50* 

42—51* 

43 — 52  and  pt.  new. 

44—53. 

45 — new  superseding  5$. 

46 — abolishing  67,  78. 

47 — new,  pt.  67,  pt.  69,  pt.  70. 

48 — new. 

49 — new,  pt.  67. 

50 — new. 

51 — new — last  pt.  from  pt.  67. 

52 — pt.  new.     78  1st  pt.  67  pt. 

53—67  pt. 

54 — 68  and  70  superseded. 

55 — new  superseding  69. 

56 — new. 

57 — new. 

58 — new  pt.  18  2nd  pt.     Supersedes 

40,  41,  42,  43,  44,  64,  67. 
59—74. 
60— 75» 
61— 76* 
62—77. 
63—79. 
64— 80» 
65—81* 

66 — 83*  with  time  changed. 
67— S4. 
68—82. 
69—88. 
70— 87» 
71—86* 
72—85. 

73 — new  superseding  55. 
74—93. 
75 — new. 
76 — new. 
77 — new. 
78—91* 

79 — 89  supersedes  90. 
80 — new. 
81— new. 


'  *  EQUITY  RULES  IN  FORCE 

FEBRUARY  1,  1913,  COMPARED  WITH  THE  OLD  EQUITY  RULES. 


EXPLANATORY  NOTE. 

Matter  contained  in  parentheses  followed  by  a  number  indicates  that  such  mat- 
ter U  the  same  as  the  old  rule  of  that  number  except  where  changes  are  indicated 
by  note  numbers  above  the  line  of  the  text  of  the  rule.  Thus  the  first  part  of 
rule  1  is  identical  with  old  rule  1  except  the  word  "district"  followed  by  note 
number  "1"  in  the  new  rule  was  "circuit"  in  old  rule  1.  The  second  part  of  rule 
1  in  parentheses  is  the  same  as  part  of  old  rule  3,  and  the  last  part  of  rule  1  in 
parentheses  is  new,  as  indicated  in  the  note  below. 

Rule  1.  District  court  always  open  for  certain  purposes — Orders  at 
chambers.  (The  district1  court,  as  courts  of  equity  shall  be  deemed 
always  open  for  the  purpose  of  filing2  any  pleading,  of  issuing  and  re- 
turning mesne  and  final  process,  and  of  making  and  directing  all  inter- 
locutory motions,  orders,  rules  and  other  proceedings  preparatory  to  the 
hearing,  upon  their  merits,  of  all  causes  pending  therein.)  (1.) 

(Any  district  judge  may,  upon  reasonable  notice  to  the  parties,  make, 
direct,  and  award,  at  chambers  or  in  the  clerk's  office,  and  in  vacation 
as  well  as  in  term,  all  such  process,  commissions,  orders,  rules  and  other 
proceedings,)  (pt.  3)  (whenever  the  same  are  not  grantable  of  course, 
according  to  the  rules  and  practice  of  the  court.)  (New.) 

1  Formerly  "circuit." 

2  Omits  "bills,  answers,  and  other." 

Drawn  from  old  rule  1,  and  part  of  old  rule  3,  but  last  sentence  of 
rule  is  new. 

The  rule  is  identical  with  §  9,  Judicial  Code,  except  omits  "admiralty 
and"  after  "district  courts,"  and  before  "as  courts  of  equity." 

Rule  2.  Clerk's  office  always  open,  except,  etc.  The  clerk's  office 
shall  be  open  during  business  hours  on  all  days,  except  Sundays  and  legal 
holidays,  and  the  clerk  shall  be  in  attendance  for  the  purpose  of  receiv- 
ing and  disposing  of  all  motions,  rules,  orders  and  other  proceedings 
which  are  grantable  of  course. 

Drawn  from  old  rule  2  which  established  the  first  Monday  in  the 
month  as  rule  day.  Rule  day  is  now  abolished.  Motion  day  is  provided 
for  in  rule  6,  post. 

(973) 


974  APPENDIX. 

Rule  3.  Books  kept  by  clerk  and  entries  therein.  The  clerk  shall 
keep  a  book  known  as  "Equity  Docket,"  in  which  he  shall  enter  each 
suit,  with  a  file  number  corresponding  to  the  folio  in  the  book.  All 
papers  and  orders  filed  with  the  clerk  in  the  suit,  all  process  issued  and 
returns  made  thereon,  and  all  appearances,  shall  be  noted  briefly  and 
chronologically  in  this  book  on  the  folio  assigned  to  the  suit  and  shall 
be  marked  with  its  file  number. 

The  clerk  shall  also  keep  a  book  entitled  "Order  Book,"  in  which  shall 
be  entered  at  length,  in  the  order  of  their  making,  all  orders  made  or 
passed  by  him  as  of  course  and  also  all  orders  made  or  passed  by  the 
judge  in  chambers. 

He  shall  also  keep  an  "Equity  Journal,"  in  which  shall  be  entered  all 
orders,  decrees  and  proceedings  of  the  court  in  equity  causes  in  term 
time. 

Separate  and  suitable  indices  of  the  Equity  Docket,  Order  Book  and 
Equity  Journal  shall  be  kept  by  the  clerk  under  the  direction  of  the 
court. 

New. — Old  rule  4  provided  for  an  "Order  Book."  Otherwise  this  is 
a  new  rule.  Supersedes  old  rule  16. 

Rule  4.  Notice  of  orders.  Neither  the  noting  of  an  order  in  the 
Equity  Docket  nor  its  entry  in  the  Order  Book  shall  of  itself  be  deemed 
notice  to  the  parties  or  their  solicitors ;  and  when  an  order  is  made  with- 
out prior  notice  to,  and  in  the  absence  of,  a  party,  the  clerk,  unless 
otherwise  directed  by  the  court  or  judge,  shall  forthwith  send  a  copy 
thereof,  by  mail,  to  such  party  or  his  solicitor  and  a  note  of  such  mailing 
shall  be  made  in  the  Equity  Docket,  which  shall  be  taken  as  sufficient 
proof  of  due  notice  of  the  order. 

New. — Superseding  old  rule  4,  which  provided  the  entry  in  the  Order 
Book  was  sufficient  notice  to  the  parties,  except  in  cases  where  personal 
or  other  notice  is  specially  required  or  directed.  The  part  as  to  mailing 
copies  is  new. 

Rule  5.  Motions  grantable  of  course  by  clerk.  (All  motions  and 
applications  in  the  clerk's  office  for  the  issuing  of  mesne  process  or  final 
process  to  enforce  and  execute  decrees;1  for  taking  bills  pro  confesso;2 
and  for  other  proceedings  in  the  clerk's  office  which  do  not3  require  any 
allowance  or  order  of  the  court  or  of  a  judge,  shall  be  deemed  motions 
and  applications  grantable  of  course  by  the  clerk;  but  the  same  may  be 


EQUITY   RULES.  975 

suspended,  or  altered,  or  rescinded  by  the  judge4  upon  special  cause 
shown.)     (5.) 

1  Omits  "for  filing  bills,  answers,  pleas,  demurrers  and  other  pleadings;  for 
making  amendments  to  bills  and  answers." 

2  Omits  "for  filing  exceptions." 

8  Omits  "by  the  rules  hereinafter  described." 
4  Omits  "of  the  court." 

Rule  6.  Motion  day.  (Each  district  court  shall  establish  regular 
times  and  places,  not  less  than  once  each  month,  when  motions  requiring 
notice  and  hearing:  may  be  made  and  disposed  of;  but  the  judge  may  at 
any  time  and  place,  and  on  sueh  notice,  if  any,  as  he  may  consider 
reasonable,  make  and  direct  all  interlocutory  orders,  rulings  and  pro- 
ceedings for  the  advancement,  conduct  and  hearing  of  causes.  If  the 
public  interest  permits,  the  senior  circuit  judge  of  the  circuit  may  dis- 
pense with  the  motion  day  during  not  to  exceed  two  months  in  the  year 
in  any  district.)  (New.  Substituting  "motion  day"  for  the  abolished 
"rule  day.") 

Rule  7.  Process,  mesne  and  final  (The  process  of  subpoena  shall 
constitute  the  proper  mesne  process  in  all  suits  in  equity,  in  the  first 
instance,  to  require  the  defendant  to  appear  and  answer  the1  bill;  and, 
unless  otherwise  provided  in  these  rules  or  specially  ordered  by  the 
court,  a  writ  of  attachment  and,  if  the  defendant  cannot  be  found,  a 
writ  of  sequestration,  or  a  writ  of  assistance  to  enforce  a  delivery  of 
possession,  as  the  case  may  require,  shall  be  the  proper  process  to  issue 
for  the  purpose  of  compelling  obedience  to  any  interlocutory  ox  final  order 
or  decree  of  the  court.)  (7.) 

1  Omits  "exigency  of." 

Rule  8.  Enforcement  of  final  decrees.  (Final  process  to  execute  any 
decree  may,  if  the  decree  be  solely  for  the  payment  of  money,  be  by  a  writ 
of  execution,  in  the  form  used  in  the  district1  court  in  suits  at  common 
law  in  actions  of  asaumpsit.  If  the  decree  be  for  the  performance  of 
any  specific  act  as,  for  example,  for  the  execution  of  a  conveyance  of 
land  or  the  delivering  up  of  deeds  or  other  documents,  the  deeree  shall, 
in  all  cases,  prescribe  the  time  within  which  the  act  shall  be  done,  of 
which  the  defendant  shall  be  bound,  without  further  service,  to  take 
notice;  and  upon  affidavit  of  the  plaintiff,  filed  in  the  clerk's  office,  that 
the  same  has  not  been  complied  with  within  the  prescribed  time,  the 
clerk  shall  issue  a  writ  of  attachment  against  the  delinquent  party,  from 


976  APPENDIX. 

which,  if  attached  thereon,  he  shall  not  be  discharged,  unless  upon  a 
full  compliance  with  the  decree  and  the  payment  of  all  costs,  or  upon 
a  special  order  of  the  court,  or  a  judge  thereof,  upon  motion  and  affi- 
davit, enlarging  the  time  for  the  performance  thereof.  If  the  delin- 
quent party  cannot  be  found  a  writ  of  sequestration  shall  issue  against 
his  estate,  upon  the  return  of  non  est  inventus,  to  compel  obedience  to 
the  decree.)  (8.  Identical.)  (If  a  mandatory  order,  injunction  or  de- 
cree for  the  specific  performance  of  any  act  or  contract  be  not  complied 
with,  the  court  or  a  judge,  besides,  or  instead  of,  proceedings  against 
the  disobedient  party  for  a  contempt  or  by  sequestration,  may  by  order 
direct  that  the  act  required  to  be  done,  be  done,  so  far  as  practicable, 
by  some  other  person  appointed  by  the  court  or  judge,  at  the  cost  of 
the  disobedient  party,  and  the  act,  when  so  done,  shall  have  like  effect  as 
if  done  by  him.)  (New.) 

l  Circuit. 

Rule  9.  Writ  of  assistance.  (When  any  decree  or  order  is  for  the 
delivery  of  possession,  upon  proof  made  by  affidavit  of  a  demand  and 
refusal  to  obey  the  decree  or  order,  the  party  prosecuting  the  same  shall 
be  entitled  to  a  writ  of  assistance  from  the  clerk  of  the  court.)  (Identi- 
cal 9.) 

Rule  10.  Decree  for  deficiency  in  foreclosures,  etc.  (In  suits  for  the 
foreclosure  of  mortgages,  or  the  enforcement  of  other  liens),  (new)  (a 
decree  may  be  rendered  for  any  balance  that  may  be  found  due  to  the 
plaintiff  over  and  above  the  proceeds  of  the  sale  or  sales,  and  execution 
may  issue  for  the  collection  of  the  same,  as  is  provided  in  rule  8  when 
the  decree  is  solely  for  the  payment  of  money.)  (Substantially  92.) 

Rule  11.  Process  in  behalf  of  and  against  persons  not  parties. 
(Every  person,  not  being  a  party  in  any  cause,  who, has  obtained  an 
order,  or  in  whose  favor  an  order  shall  have  been  made,  may  enforce 
obedience  to  such  order  by  the  same  process  as  if  he  were  a  party ;  and 
every  person,  not  being  a  party,  against  whom  obedience  to  any  order 
of  the  court  may  be  enforced,  shall  be  liable  to  the  same  process  for  en- 
forcing obedience  to  such  orders  as  if  he  were  a  party.1)  (10.) 

l  The  last  three  words  of  the  old  rule  10,  "in  the  cause,"  are  omitted. 

Rule  12.  Issue  of  subpoena — Time  for  answer.  (Whenever  a  bill  is 
filed,  and  not  before,  the  clerk  shall  issue  the  process  of  subpoena  there- 
on,) (11.)  as  of  course,  upon  the  application  of  the  plaintiff,  (which 


EQUITY  BULBS.  977 

shall  contain  the  names  of  the  parties  and  be  returnable  into  the  clerk's 
office  twenty  days  from  the  issuing  thereof.)  (New.)  (At  the  bottom 
of  the  subpoena  shall  be  placed  a  memorandum,  that  the  defendant  is 
required  to  file  his  answer  or  other  defense  in  the  clerk's  office  on  or  be- 
fore the  twentieth  day  after  service,  excluding  the  day  thereof;  otherwise 
the  bill  may  be  taken  pro  confesso.  Where  there  are  more  than  one  de- 
fendant, a  writ  of  subpoena  may,  at  the  election  of  the  plaintiff,  be  sued 
out  separately  for  each  defendant,  or  a  joint  subpoena  against  all  the  de- 
fendants.) (12.) 

This  rule  combines  old  rules  11  and  12;  the  time  for  answering  u 
changed  because  of  the  abolition  of  the  rule  day.  Appearance  day  is 
abolished. 

Rule  13.  Manner  of  serving  subpoena.  (The  service  of  all  subpoenas 
shall  be  by  delivering  a  copy  thereof  to  the  defendant  personally,  or  by 
leaving  a  copy  thereof  at  the  dwelling  house  or  usual  place  of  abode 
of  each  defendant,  with  some  adult  person  who  is  a  member  of  or  resi- 
dent in  the  family.)  (Identical  13.) 

Rule  14.  Alias  subpoena.  (Whenever  any  subpoena  shall  be  returned 
not  executed  as  to  any  defendant,  the  plaintiff  shall  be  entitled  to  other1 
subpoenas2  against  such  defendant,  until  due  service  is  made.)  (14.) 

1  Changed  from  "another." 

*  Omits  "totie*  quoties." 

Rule  15.  Process,  by  whom  served.  (The  service  of  all  process, 
mesne  and  final,  shall  be  by  the  marshal  of  the  district,  or  his  deputy, 
or  by  some  other  person  specially  appointed  by  the  court  or  judge  for  that 
purpose,  and  not  otherwise.  In  the  latter  case,  the  person  serving  the 
process  shall  make  affidavit  thereof.)  (Identical  15.) 

Rule  16.  Defendant  to  answer — Default — Decree  pro  confesso.  (It 
shall  be  the  duty  of  the  defendant,  unless  the  time  shall  be  enlarged,  for 
cause  shown,  by  a  judge  of  the  court,1  to  file  his  answer2  or  other  de- 
fense (new)  to  the  bill  in  the  clerk's  office  within  the  time  named  in  the 
subpoena  as  required  by  rule  12.3  In  default  thereof  the  plaintiff  may, 
at  his  election,  take  an  order  as  the  course4  that  the  bill  be  taken  pro 
confesso;  and  thereupon  the  cause  shall  be  proceeded  in  ex  parte.)  (1st 
pt.  18.) 

1  Omita  "on  motion  for  that  purpose." 

2  Omits  "plea,  demurrer." 

3  Changes  "on  the  rule  next  succeeding  that  of  his  appearance.* 

*  Omits  "enter  an  order  ...  in  the  Order  Book." 

Manual — 62 


978  APPENDIX. 

Rule  17.  Decree  pro  confesso  to  be  followed  by  final  decree — Setting 
aside  default.  (When  the  bill  is  taken  pro  confesso  the  court  may  pro- 
ceed to  a1  final  decree  at  any  time  after  the  expiration  of  thirty  days 
after  the  entry  of  the  order2  pro  confesso,  and  such  decree3  shall  be 
deemed  absolute,  unless  the  court  shall,  at  the  same  term,  set  aside 
the  same,  or  enlarge  the  time  for  filing  the  answer,  upon  cause  shown 
upon  motion  and  affidavit.4  No  such  motion  shall  be  granted,  unless 
upon  the  payment  of  the  costs  of  the  plaintiff5  up  to  that  time,  or  such 
part  thereof  as  the  court  shall  deem  reasonable,  and  unless  the  defend- 
ant shall  undertake  to  file  his  answer  within  such  time  as  the  court  shall 
direct,  and  submit  to  such  other  terms  as  the  court  shall  direct  for  the 
purpose  of  speeding  the  cause.)  (19.) 

1  Adds  "final." 

2  Omits,  "to  take  the  bill." 

3  Omits,  "rendered." 

*  Omits,  "of  the  defendant." 
6  Omits,  "in  the  suit." 

Rule  18.  Pleadings — Technical  forms  abrogated.  (Unless  otherwise 
prescribed  by  statute  or  these  rules  the  technical  forms  of  pleadings  in 
equity  are  abolished.)  (New.) 

Rule  19.  Amendments  generally.  (The  court  may  at  any  time,  in 
furtherance  of  justice,  upon  such  terms  as  may  be  just,  permit  any  pro- 
cess, proceeding,  pleading  or  record  to  be  amended,  or  material  sup- 
plemental matter  to  be  set  forth  in  an  amended  or  supplemental  pleading. 
The  court,  at  every  stage  of  the  proceeding,  must  disregard  any  error 
or  defect  in  the  proceedings  which  does  not  affect  the  substantial  rights 
of  the  parties.)  (28,  29,  60.  Supersedes  old  rule  30.) 

See  rule  28,  post. 

Drawn  from  old  rules  28,  29,  and  60,  which  it  supersedes.    It  also 

Rule  20.  Further  and  particular  statement  in  pleading  may  be  re- 
quired, A  further  and  better  statement  of  the  nature  of  the  claim  or 
defense,  or  further  and  better  particulars  of  any  matter  stated  in  any 
pleading,  may  in  any  case  be  ordered,  upon  such  terms,  as  to  costs  and 
otherwise,  as  may  be  just. 

New  rule,  drawn  from  order  XIX,  rule  7,  English  chancery  practice. 
As  to  object  of  particulars,  see  Speeding  v.  Fitzpatrick,  38  C.  D.  413 ; 
Milbank  v.  Milbank,  1  Ch.  285. 


•QUITY  RULES.  979 

• 

Role  21.  Scandal  and  impertinence.  (The  right  to  except  to  bills, 
answers,  and  other  proceedings  for  scandal  or  impertinence  shall  not  ob- 
tain, but  the  court  may,  upon  motion  or  its  own  initiative,  order  any 
redundant,  impertinent  or  scandalous  matter  stricken  out,  upon  such 
terms  as  the  court  shall  think  fit.)  (New.  Abolishing  the  practice  of 
taking  exceptions  for  scandal  and  impertinence  under  old  rules,  26,  27,  61. 
See  Rule  33,  post.) 

Rule  22.  Action  at  law  erroneously  begun  as  suit  in  equity — Trans- 
fer. (If  at  any  time  it  appear  that  a  suit  commenced  in  equity  should 
have  been  brought  as  an  action  on  the  law  side  of  the  court,  it  shall  be 
forthwith  transferred  to  the  law  side  and  be  there  proceeded  with,  with 
only  such  alteration  in  the  pleadings  as  shall  be  essential.)  (New.  Same 
as  English  practice  under  judicature  act  1875.) 

Rule  23.  Matters  ordinarily  determinate  at  law,  when  arising  in  suit 
in  equity  to  be  disposed  of  therein.  (If  in  a  suit  in  equity  a  matter 
ordinarily  determinable  at  law  arises,  such  matter  shall  be  determined 
in  that  suit  according  to  the  principles  applicable,  without  sending  the 
case  or  question  to  the  law  side  of  the  court.)  (New.) 

Rule  24.  Signature  of  counsel.  (Every  bill  or  other  pleading  shall  be 
signed  individually  by  one  or  more  solicitors  of  record,  and  such  signa- 
tures shall  be  considered  as  a  certificate  by  each  solicitor  that  he  has 
read  the  pleading  so  signed  by  him;  that  upon  the  instructions  laid  be- 
fore him  regarding  the  case  is  good  ground  for  the  same;  that  no 
scandalous  matter  is  inserted  in  the  pleading;  and  that  it  is  not  inter- 
posed for  delay.)  (24.  Partly  New.) 

Rule  25.  Bill  of  complaint — Contents.  Hereafter  it  shall  be  suffi- 
cient that  a  bill  in  equity  shall  contain,  in  addition  to  the  usual  caption: 

First,  (the  full  name,  when  known,  of  each  plaintiff  and  defendant, 
and  the  citizenship  and  residence  of  each  party.  If  any  party  be  under 
any  disability  that  fact  shall  be  stated.)  (From  20.) 

Second,  (a  short  and  plain  statement  of  the  grounds  upon  which  the 
court's  jurisdiction  depends.)  (From  21.) 

Third,  (a  short  and  simple  statement  of  the  ultimate  facts  upon  which 
the  plaintiff  asks  relief,  omitting  any  mere  statement  of  evidence.) 
(New.) 

Fourth,  (if  there  are  persons  other  than  those  named  as  defendants 
who  appear  to  be  proper  parties,  the  bill  should  state  why  they  are  not 


980  APPENDIX. 

made  parties — as  that  they  are  not  within  the  jurisdiction  of  the  court, 
or  cannot  be  made  parties  without  ousting  the  jurisdiction.)  (22. 
Partly.) 

Fifth,  a  statement  of  and  prayer  for  any  special  relief  pending  the 
suit  or  .on  final  hearing,  which  may  be  stated  and  sought  in  alternative 
forms.  If  special  relief  pending  the  suit  be  desired  the  bill  should  be 
verified  by  the  oath  of  the  plaintiff,  or  someone  having  knowledge  of 
the  facts  upon  which  such  relief  is  asked.  (From  last  pt.  21  and  23.) 

Rule  26.  Joinder  of  causes  of  action.  (The  plaintiff  may  join  in  one 
bill  as  many  causes  of  action,  cognizable  in  equity,  as  he  may  have  against 
the  defendant.  But  when  there  are  more  than  one  plaintiff,  the  causes  of 
action  joined  must  be  joint,  and  if  there  be  more  than  one  defendant  the 
liability  must  be  one  asserted  against  all  of  the  material  defendants,  or 
sufficient  grounds  must  appear  for  uniting  the  causes  of  action  in  order 
to  promote  the  convenient  administration  of  justice.  If  it  appear  that 
any  such  causes  of  action  cannot  be  conveniently  disposed  of  together, 
the  court  may  order  separate  trials.)  (New.) 

Rule  27.  Stockholder's  bill.  (Every  bill  brought  by  one  or  more  stock- 
holders in  a  corporation  against  the  corporation  and  other  parties, 
founded  on  rights  which  may  properly  be  asserted  by  the  corporation, 
must  be  verified  by  oath,  and  must  contain  an  allegation  that  the  plain- 
tiff was  a  shareholder  at  the  time  of  the  transaction  of  which  he  com- 
plains, or  that  his  share  had  devolved  on  him  since  by  operation  of  law, 
and  that  the  suit  is  not  a  collusive  one  to  confer  on  a  court  of  the  United 
States  jurisdiction  of  a  case  of  which  it  would  not  otherwise  have  cogni- 
zance. It  must  also  set  forth  with  particularity  the  efforts  of  the  plain- 
tiff to  secure  such  action  as  he  desires  on  the  part  of  the  managing 
directors  or  trustees,  and,  if  necessary,  of  the  shareholders,  and  the 
causes  of  his  failure  to  obtain  such  action,)  (94)  (or  the  reasons  for  not 
making  such  effort.)  (New.) 

Rule  28.  Amendment  of  bill  as  of  course.  (The  plaintiff  may,  as  of 
course,  amend  his  bill  before  the  defendant  has  responded  thereto,  but  if 
such  amendment  be  filed  after  any  copy  has  issued  from  the  clerk's  office, 
the  plaintiff  at  his  own  cost  shall  furnish  to  the  solicitor  of  record  of 
each  opposing  party  a  copy  of  the  bill  as  amended,  unless  otherwise 
ordered  by  the  court  or  judge.)  (From  28,  1st  part.) 

After  pleading  filed  by  any  defendant,  plaintiff  may  amend  only  by 
consent  of  the  defendant  or  leave  of  the  court  or  judge.  (From  29, 
1st  part.) 


EQUITY   RULES.  981 

This  rule,  with  rule  19  above,  makes  several  changes  in  the  practice 
as  to  amendments. 

Rule  29.  Defenses — How  presented.  (Demurrers  and  pleas  are  abol- 
ished. Every  defense  in  point  of  law  arising  upon  the  face  of  the  bill, 
whether  for  misjoinder,  nonjoinder,  or  insufficiency  of  fact  to  constitute 
a  valid  cause  of  action  in  equity,  which  might  heretofore  have  been  made 
by  demurrer  or  plea,  shall  be  made  by  motion  to  dismiss  or  in  the  answer; 
and  every  such  point  of  law  going  to  the  whole  or  a  material  part  of  tho 
cause  or  causes  of  action  stated  in  the  bill  may  be  called  up  and  dis- 
posed of  before  final  hearing  at  the  discretion  of  the  court.  Every  de- 
fense heretofore  presentable  by  plea  in  bar  or  abatement  shall  be  made 
in  the  answer  and  may  be  separately  heard  and  disposed  of  before  the 
trial  of  the  principal  case  in  the  discretion  of  the  court.  If  the  de- 
fendant move  to  dismiss  the  bill  or  any  part  thereof,  the  motion  may 
be  set  down  for  hearing  by  either  party  upon  five  days'  notice,  and, 
if  it  be  denied,  answer  shall  be  filed  within  five  days  thereafter  or  a  de- 
cree pro  confesso  entered.)  (New.  Does  away  with  old  rules  3  to  39, 
inclusive.) 

Rule  30.  Answer — Contents — Counterclaim.  (The  defendant  in  his 
answer  shall  in  short  and  simple  terms  set  out  his  defense  to  each  claim 
asserted  by  the  bill,  omitting  any  mere  statement  of  evidence  and  avoid- 
ing any  general  denial  of  the  averments  of  the  bill,  but  specifically  ad- 
mitting or  denying  or  explaining  the  facts  upon  which  the  plaintiff  relies, 
unless  the  defendant  is  without  knowledge,  in  which  case  he  shall  so  state, 
such  statement  operating  as  a  denial.  Averments  other  than  of  value 
or  amount  of  damage,  if  not  denied,  shall  be  deemed  confessed,  except 
as  against  an  infant,  lunatic  or  other  person  non  compos  and  not  under 
guardianship,  but  the  answer  may  be  amended,  by  leave  of  the  court  or 
judge,  upon  reasonable  notice,  so  as  to  put  any  averment  in  issue,  when 
justice  requires  it.  The  answer  may  state  as  many  defenses,  in  the 
alternative,  regardless  of  consistency,  as  the  defendant  deems  essential 
to  his  defense. 

The  answer  must  state  in  short  and  simple  form  any  counterclaim 
arising  out  of  the  transaction  which  is  the  subject  matter  of  the  suit, 
and  may,  without  cross-bill,  set  out  any  set-off  or  counterclaim  against 
the  plaintiff  which  might  be  the  subject  of  an  independent  suit  in  equity 
against  him,  and  such  set-off  or  counterclaim,  so  set  up,  ahall  have  the 
same  effect  as  a  cross-suit,  so  as  to  enable  the  court  to  pronounce  a  final 
judgment  in  the  same  suit  both  on  the  original  and  cross-claims.)  (New. 
Supersedes  old  rules  60  and  72.) 


982  APPENDIX. 

Rule  31.  Reply — When  required — When  cause  at  issue.  (Unless  the 
answer  assert  a  set-off  or  counterclaim,  no  reply  shall  be  required  without 
special  order  of  the  court  or  judge,  but  the  cause  shall  be  deemed  at  issue 
upon  the  filing  of  the  answer,  and  any  new  or  affirmative  matter  therein 
shall  be  deemed  to  be  denied  by  the  plaintiff.  If  the  answer  include  a 
set-off  or  counterclaim  the  party  against  whom  it  is  asserted  shall  reply 
within  ten  days  after  the  filing  of  the  answer,  unless  a  longer  time  be 
allowed  by  the  court  or  judge.  If  the  counterclaim  is  one  which  affects 
the  rights  of  other  defendants  they  or  their  solicitors  shall  be  served  with 
a  copy  of  the  same  within  ten  days  from  the  filing  thereof,  and  ten  days 
shall  be  accorded  to  such  defendants  for  filing  a  reply.  In  default  of  a 
reply,  a  decree  pro  confesso  on  the  counterclaim  may  be  entered  as  in 
default  of  an  answer  to  the  bill.)  (New.  Supersedes  old  rules  45  and 
66.) 

Rule  32.  Answer  to  amended  bill.  (In  every  case  where  an  amend- 
ment to  the  bill  shall  be  made  after  answer  filed,  the  defendant  shall  put 
in  a  new  or  supplemental  answer  within  ten  days)  (new)  (after  that  on 
which  the  amendment  or  amended  bill  is  filed,  unless  the  time  is  en- 
larged or  otherwise  ordered  by  a  judge  of  the  court;  and  upon  a  de- 
fault, the  like  proceedings  may  be  had  as  upon  an  omission  to  put  in 
an  answer.)  (46.  Rule  day  being  abolished,  the  only  change  of  lan- 
guage in  old  rule  46  was  that  defining  time.) 

Rule  33.  Testing  sufficiency  of  defense.  Exceptions  for  insufficiency 
of  an  answer  are  abolished.  But  if  an  answer  set  up  an  affirmative  de- 
fense, set-off  or  counterclaim,  the  plaintiff  may,  upon  five  days'  notice, 
or  such  further  time  as  the  court  may  allow,  test  the  sufficiency  of  the 
same  by  motion  to  strike  out.  If  found  insufficient  but  amendable  the 
court  may  allow  an  amendment  upon  terms,  •  or  strike  out  the  matter. 
(New.  Superseding  old  rules  61,  63,  64.) 

Rule  34.  Supplemental  pleading.  (Upon  application  of  either  party 
the  court  or  judge,  may,  upon  reasonable  notice  and  such  terms  as  are 
just,  permit  him  to  file  and  serve  a  supplemental  pleading,  alleging  ma- 
terial facts  occurring  after  his  former  pleading,  or  of  which  he  was 
ignorant  when  it  was  made,  including  the  judgment  or  decree  of  a  com- 
petent court  rendered  after  the  commencement  of  the  suit  determining 
the  matters  in  controversy  or  a  part  thereof.)  (New.  See  old  rule  57.) 

Rule  35.  Bills  of  revivor  and  supplemental  bills — Form,  (It  shall 
not  be  necessary  in  any  bill  of  revivor  or  supplemental  bill  to  set  forth 


EQUITY   RULES.  983 

t  • 

any  of  the  statements  in  the  original  suit,  unless  the  special  circum- 
stances of  the  case  may  require  it.)     (Identical  58.) 

Rule  36.  Officers  before  whom  pleadings  verified.  Every  pleading 
which  is  required  to  be  sworn  to  by  statute,  or  these  rules,  may  be  verified 
(before  any  justice  or  judge  of  any  court  of  the  United  States,  or  of 
any  state  or  territory,  or  of  the  District  of  Columbia,  or  any  clerk  of  any 
court  of  the  United  States,  or  of  any  territory,  or  of  the  District  of 
Columbia,  or  any  notary  public).  (59.  Omitting  commissioners  and 
masters  in  chancery.  First  part  of  the  old  rule  read,  "Every  defendant 
may  swear  to  his  answer.  .  .  .  ") 

Rule  37.  Parties  generally— Intervention.  (Every  action  shall  be 
prosecuted  in  the  name  of  the  real  party  in  interest,  but  an  executor, 
administrator,  guardian,  trustee  of  an  express  trust,  a  party  with  whom 
or  in  whose  name  a  contract  has  been  made  for  the  benefit  of  another, 
or  a  party  expressly  authorized  by  statute,  may  sue  in  his  own  name 
without  joining  with  him  the  party  for  whose  benefit  the  action  is 
brought.  All  persons  having  an  interest  in  the  subject  of  the  action 
and  in  obtaining  the  relief  demanded  may  join  as  plaintiffs,  and  any 
person  may  be  made  a  defendant  who  has  or  claims  an  interest  adverse 
to  the  plaintiff.  Any  person  may  at  any  time  be  made  a  party  if  his 
presence  is  necessary  or  proper  to  a  complete  determination  of  the  cause. 
Persons  having  a  united  interest  must  be  joined  on  the  same  side  as 
plaintiffs  or  defendants,  but  when  anyone  refuses  to  join,  he  may  for  such 
reason  be  made  a  defendant. 

Anyone  claiming  an  interest  in  the  litigation  may  at  any  time  be 
permitted  to  assert  his  right  by  intervention,  but  the  intervention  shall 
be  in  subordination  to,  and  in  recognition  of,  the  propriety  of  the  main 
proceeding.)  (New.  Superseding  49.) 

Rule  38.  Representatives  of  class.  (When  the  question  is  one  of  com- 
mon or  general  interest  to  many  persons  constituting  a  class  so  numerous 
as  to  make  it  impracticable  to  bring  them  all  before  the  court,  one  or 
more  may  sue  or  defend  for  the  whole.)  (New.  Drawn  from  old  rule  48.) 

Rule  39.  Absence  of  persona  who  would  be  proper  parties.  (In  all 
cases  where  it  shall  appear  to  the  court  that  persons,  who  might  other- 
wise be  deemed1  proper  parties  to  the  suit,  cannot  be  made  parties  by 
reason  of  their  being  out  of  the  jurisdiction  of  the  court,  or  incapable 
otherwise  of  being  made  parties,  or  because  their  joinder  would  oust 


984  APPENDIX. 

the  jurisdiction  of  the  court  as  to  the  parties  before  the  court,  the  court 
may,  in  its  discretion,  proceed  in  the  cause  without  making  such  persons 
parties;  and  in  such  cases  the  decree  shall  be  without  prejudice  to  the 
rights  of  the  absent  parties.)  (47.) 

i  Omits  "necessary  or." 
See  §  50,  Judicial  Code. 

Rule  40.  Nominal  parties.  (Where  no  account,  payment,  conveyance, 
or  other  direct  relief  is  sought  against  a  party  to  a  suit,  not  being  an 
infant,  the  party,  upon  service  of  the  subpoena  upon  him,  need  not  ap- 
pear and  answer  the  bill,  unless  the  plaintiff  specially  requires  him  to 
do  so  by  the  prayer,1  but  he  may  appear  and  answer  at  his  option;  and 
if  he  does  not  appear  and  answer  he  shall  be  bound  by  all  the  proceed- 
ings in  the  cause.  If  the  plaintiff  shall  require  him  to  appear  and  answer 
he  shall  be  entitled  to  the  costs  of  all  the  proceedings  against  him,  unless 
the  court  shall  otherwise  direct.)  (54.) 

i  Omits  "of  his  bill." 

Rule  41.  Suit  to  execute  trusts  of  will — Heir  as  party.  (In  snits  to 
execute  the  trusts  of  a  will,  it  shall  not  be  necessary  to  make  the  heir 
at  law  a  party;  but  the  plaintiff  shall  be  at  liberty  to  make  the  heir  at 
law  a  party  where  he  desires  to  have  the  will  established  against  him.) 
(Identical  50.) 

Rule  42.  Joint  and  several  demands.  (In  all  cases  in  which  the  plain- 
tiff has  a  joint  and  several  demand  against  several  persons,  either  as 
principals  or  sureties,  it  shall  not  be  necessary  to  bring  before  the  court 
as  parties  to  a  suit  concerning  such  demand  all  the  persons  liable  thereto; 
but  the  plaintiff  may  proceed  against  one  or  more  of  the  persons  severally 
liable.)  (Identical  51.) 

Rule  43.  Defect  of  parties — Resisting  objection.  (Where  the  defend- 
ant shall  by  his  answer  suggest  that  the  bill  of  complaint  is  defective 
for  want  of  parties,  the  plaintiff  may,1  within  fourteen  days  after  answer 
filed,  set  down  the  cause  for  argument  as  a  motion  upon  that  objection 
only,2  and  where  the  plaintiff  shall  not  so  set  down  his  cause,  but  shall 
proceed  therewith  to  a  hearing,  notwithstanding  an  objection  for  want 
of  parties  taken  by  the  answer,  he  shall  not  at  the  hearing  of  the  cause, 
if  the  defendant's  objection  shall  then  be  allowed,  be  entitled  as  of  course 
to  an  order3  to  amend  his  bill  by  adding  parties ;  but  the  court4  shall  be 


EQUITY  RULES.  985 

at  liberty  to  dismiss  the  bill,)  (52.)     (or  to  allow  an  amendment  on  such 
terms  as  justice  may  require.)       (New.) 

i  Omitted  words,  "shalJ  be  at  liberty." 

a  "And  the  purpose  for  which  the  same  is  set  down  shall  b«  notified  by  an 
entry,  to  be  made  in  the  clerk's  Order  Book  in  form  or  to  the  effwt  following 
(that  is  to  say) :  'Set  down  on  the  defendant's  objection  for  want  of  partiea."* 

3  Omit*,  "for  liberty." 

4  Omits,  "if  it  thinks  fit." 

Rule  44.  Defect  of  parties— Tardy  objection.  (If  a  defendant  shall, 
at  the  hearing  of  a  cause,  object  that  a  suit  is  defective  for  want  of 
parties,  not  having  by1  motion  or  answer  taken  the  objection  and  therein 
specified  by  name  or  description  the  parties  to  whom  the  objection  ap- 
plies, the  court  shall2  be  at  liberty  to  make  a  decree  saving  the  rights 
of  the  absent  parties.)  (53.) 

1  Word  "motion"  substituted  for  "plea  or  answer." 
»  "(if  it  shall  think  fit)"  omitted. 

Rule  45.  Death  of  party— Revivor.  (In  the  event  of  the  death  of 
either  party  the  court  may,  in  a  proper  case,  upon  motion,  order  the  suit 
to  be  revived  by  the  substitution  of  the  proper  parties.  If  the  successors 
or  representatives  of  the  deceased  party  fail  to  make  such  application 
within  a  reasonable  time,  then  any  other  party  may,  on  motion,  apply  for 
such  relief,  and  'the  court,  upon  any  such  motion,  may  make  the  neces- 
sary orders  for  notice  to  the  parties  to  be  substituted  and  for  the  filine 
of  such  pleadings  or  amendments  as  may  be  necessary.)  (New.  Supersed- 
ing 56.) 

Rule  46.  Trial — Testimony  usually  taken  in  open  court — Rulings  on 
objections  to  evidence.  (In  all  trials  in  equity  Che  testimony  of  witnesses 
shall  be  taken  orally  in  open  court,  except  as  otherwise  provided  by  stat- 
ute or  these  rules.  The  court  shall  pass  upon  the  admissibility  of  all 
evidence  offered  as  in  actions  at  law.  When  evidence  is  offered  and 
excluded,  and  the  party  against  whom  the  ruling  is  made  excepts  thereto 
at  the  time,  the  court  shall  take  and  report  so  much  thereof,  or  make 
such  a  statement  respecting  it,  as  will  clearly  show  the  character  of  the 
evidence,  the  form  in  which  it  was  offered,  the  objection  made,  the  ruling, 
and  the  exception.  If  the  appellate  court  shall  be  of  opinion  that  the 
evidence  should  have  been  admitted,  it  shall  not  reverse  the  decree  un- 
less it  be  clearly  of  opinion  that  material  prejudice  will  result  from  an 
affirmance,  in  which  event  it  shall  direct  such  further  steps  as  justice  may 
require.)  (New.  Abolishing  the  practice  under  67.) 


986  APPENDIX. 

Rule  47.  Depositions — To  be  taken  in  exceptional  instances.  (The 
court,  upon  application  of  either  party,  when  allowed  by  statute,1  or  for 
good  and  exceptional  cause  for  departing  from  the  general  rule,  to  be 
shown  by  affidavit,  may  permit  the  deposition  of  named  witnesses,  to 
be  used  before  the  court  or  upon  a  reference  to  a  master,  to  be  taken 
before  an  examiner  or  other  named  officer,  upon  the  notice  and  term.s 
specified  in  the  order.  All  depositions  taken  under  a  statute,  or  under 
any  such  order  of  the  court,  shall  be  taken  and  filed  as  follows,  unless 
otherwise  ordered  by  the  court  or  judge  for  good  cause  shown :  Those 
of  the  plaintiff  within  sixty  days  from  the  time  the  cause  is  .at  issue ; 
those  of  the  defendant  within  thirty  days  from  the  expiration  of  the  time 
for  the  filing  of  plaintiff's  depositions;  and  rebutting  depositions  by 
either  party  within  twenty  days  after  the  time  for  taking  original  deposi- 
tions expires.)  (New.  Superseding  67,  69  and  70.) 

i  See  new  rule  54,  post. 

Rule  48.  Testimony  of  expert  witnesses  in  patent  and  trademark 
cases.  In  a  case  involving  the  validity  or  scope  of  a  patent  or  trade- 
mark, the  district  court  may,  upon  petition,  order  that  the  testimony  in 
chief  of  expert  witnesses,  whose  testimony  is  directed  to  matters  of 
opinion,  be  set  forth  in  affidavits  and  filed  as  follows :  Those  of  the  plain- 
tiff within  forty  days  after  the  cause  is  at  issue ;  those  of  the  defendant 
within  twenty  days  after  plaintiff's  time  has  expired ;  arid  rebutting  affi- 
davits within  fifteen  days  after  the  expiration  of  the  time  for  filing 
original  affidavits.  Should  the  opposite  party  desire  the  production  of 
any  affiant  for  cross-examination,  the  court  or  judge  shall,  on  motion, 
direct  that  said  cross-examination  and  any  re-examination  take  place 
before  the  court  upon  the  trial,  and  unless  the  affiant  is  produced  and 
submits  to  cross-examination  in  compliance  with  such  direction,  his 
affidavit  shall  not  be  used  as  evidence  in  the  cause. 

New.  The  probabilities  are  that  this  rule  will  make  little  change  in 
patent  and  trademark  cases,  and  that  rule  46  will  not  be  applied  to  these 
cases.  Probably  testimony  will  be  largely  taken  as  formerly,  by  resort 
to  the  first  clause  in  rule  47,  allowing  depositions  to  be  taken  "for  good 
and  exceptional  cause."  The  practice  since  these  rules  went  into  effect 
bears  out  the  foregoing  statute  in  our  first  edition. 

Rule  49.  Evidence  taken  before  examiners,  etc.  (All  evidence  offered 
before  an  examiner  or  like  officer,  together  with  any  objections,  shall  be 
saved  and  returned  into  the  court.  Depositions,  whether  upon  oral  ex- 
amination before  an  examiner  or  like  officer  or  otherwise,  shall  be  taken 


EQUITY  RULES.  987 

upon  questions  and  answers  reduced  to  writinp,  or  in  the  form  of  narra- 
tive, and  the  witness  shall  be  subject  to  cross  and  re-examination.)  (New. 
See  67.) 

Rule  50.  Stenographer— Appointment— Fees.  (When  deemed  neces- 
sary by  the  court  or  officer  taking  testimony,  a  stenographer  may  be  ap- 
pointed who  shall  take  down  testimony  in  shorthand  and,  if  required, 
transcribe  the  same.  His  fee  shall  be  fixed  by  the  court  and  taxed  ulti- 
mately as  costs.  The  expense  of  taking  a  deposition,  or  the  cost  of 
a  transcript,  shall  be  advanced  by  the  party  calling  the  witness  or  order- 
ing the  transcript.)  (New.) 

Rule  51.  Evidence  taken  before  examiners,  etc.  (Objections  to  the 
evidence,  before  an  examiner  or  like  officer,  shall  be  in  short  form,  stating 
the  grounds  of  objection  relied  upon,  but  no  transcript  filed  by  such 
officer  shall  include  argument  or  debate.  The  testimony  of  each  witness, 
after  being  reduced  to  writing,  (shall  be  read  over  to  or  by  him,1  and 
shall  be  signed  by  him  in  the  presence  of  the  officer:2  Provided,  That  if 
the  witness  shall  refuse  to  sign  his3  deposition  so  taken,  the  officer4  shall 
sign  the  same,  stating  upon  the  record  the  reasons,  if  any,  assigned  by 
the  witness  for  such  refusal.6  Objection  to  any  question  or  questions 
shall  be  noted  by  the  officer  upon  the  deposition,  but  he  shall  not  have 
power  to  decide  on  the  competency  or  materiality  or  relevancy  of  the 
questions.  The  court  shall  have  power,  and  it  shall  be  its  duty,  to  deal 
with  the  costs  of  incompetent  and  immaterial  or  irrelevant  depositions, 
or  parts  of  them,  as  may  be  just.  (Substantially  67,  last  pt.) 

1  "Him,"  for  "the  witness." 

2  "Officer"  instead  of  "of  the  parties  or  counsel,  or  such  of  them  as  maj 
attend." 

8  "His"  instead  of  "the  said." 
*  "Officer"  for  "examiner." 

5  Omitted  "and  the  examiner  may  upon  all  examinations  state  any  special 
matters  to  the  court  as  he  shall  see  fit." 

Rule  52.  Attendance  of  witnesses  before  commissioner,  master  or  ex- 
aminer. (Witnesses  who  live  within  the  district,  and  whose  testimony 
may  be  taken  out  of  court  by  these  rules,)  (new)  (may  be  summoned  to 
appear  before  a  commissioner  appointed  to  take  testimony,  or  before  a 
master  or  examiner  appointed  in  any  cause,  by  subpoena  in  the  usual 
form,  which  may  be  issued  by  the  clerk  in  blank  and  filled  up  by  the 
party  praying  the  same,  or  by  the  commissioner,  master,  or  examiner, 
requiring  the  attendance  of  the  witnesses  at  the  time  and  place  specified, 
who  shall  be  allowed  for  attendance  the  same  compensation  as  for  attend- 


988  APPENDIX. 

ance  in  court ;  and  if  any  witness  shall  refuse  to  appear  or  give  evidence 
it  shall  be  deemed  a  contempt  of  the  court,  which  being  certified  to  the 
clerk's  office  by  the  commissioner,  master,  or  examiner,  an  attachment 
may  issue  thereupon  by  order  of  the  court  or  of  any  judge  thereof,  in 
the  same  manner  as  if  the  contempt  were  for  not  attending,  or  for  re- 
fusing to  give  testimony  in,  the  court.)  (78,  1st  part.) 

(In  case  of  refusal  of  witnesses  to  attend  or  be  sworn  or  to  answer 
any  question  put  by  the  commissioner,  master  or)  (new)  (examiner  or  by 
counsel  or  solicitor,  the  same  practice  shall  be  adopted  as  is  now  practiced 
with  respect  to  witnesses  to  be  produced  on  examination  before  an  ex- 
aminer of  said  court  on  written  interrogatories.)  (67,  pt.) 

Rule  53.  Notice  of  taking  testimony  before  examiner,  etc.  (Notice 
shall  be  given  by  the  respective  counsel  or  parties  to  the  opposite  coun- 
sel or  parties  of  the  time  and  place  of  examination  before  an  examiner 
or  like  officer  for  such  reasonable  time  as  the  court  or  officer1  may  fix 
by  order  in  each  case.)  (67,  pt.) 

1  "Court  or  officer"  for  "examiner." 

Rule  54.  Deposition  tinder  Rev.  Stats.  §§  863,  865,  866,  867 — Cross-ex- 
amination. (After  a  cause  is  at  issue,  depositions  may  be  taken  as  pro- 
vided by  §§  863,  865,  866  and  867,  Revised  Statutes.  But  if  in  any  case 
no  notice  has  been  given  the  opposite  party  of  the  time  and  place  of 
taking  the  deposition,  he  shall,  upon  application  and  notice,  be  entitled  to 
have  the  witness  examined  orally  before  the  court),  (new)  (or  to  a  cross- 
examination  before  an  examiner  or  like  officer,  or  a  new  deposition  taken 
with  notice,  as  the  court  or  judge  under  all  the  circumstances  shall 
order.)  (68  and  70  superseded.) 

Rule  55.  Deposition  deemed  published  when  filed,  (Upon  the  filing 
of  any  deposition  or  affidavit  taken  under  these  rules  or  any  statute,  it 
shall  be  deemed  published,  unless  otherwise  ordered  by  the  court.)  (New. 
Superseding  69.) 

Rule  56.  On  expiration  of  time  for  depositions,  case  goes  on  trial  calen- 
dar. (After  the  time  has  elapsed  for  taking  and  filing  depositions  under 
these  rules,  the  case  shall  be  placed  on  the  trial  calendar.  Thereafter  no 
further  testimony  by  deposition  shall  be  taken  except  for  some  strong  rea- 
son shown  by  affidavit.  In  every  such  application  the  reason  why  the 
testimony  of  the  witness  cannot  be  had  orally  on  the  trial,  and  why  his 


EQUITY   KULES.  989 

deposition  has  not  been  before  taken,  shall  be  set  forth,  together  with  the 
testimony  which  it  is  expected  the.  witness  will  give.)     (New.) 

Rule  57.  Continuances.  (After  a  cause  shall  he  placed  on  the  trial 
calendar  it  may  be  passed  over  to  another  day  of  the  same  term,  by 
consent  of  counsel  or  order  of  the  court,  but  shall  not  be  continued  be- 
yond the  term  save  in  exceptional  cases  by  order  of  the  court  upon  good 
cause  shown  by  affidavit  and  upon  such  terms  as  the  court  shall  in  its 
discretion  impose.  Continuances  beyond  the  term  by  consent  of  the  par- 
ties shall  be  allowed  on  condition  only  that  a  stipulation  be  signed  by 
counsel  for  all  the  parties  and  that  all  costs  incurred  theretofore  be 
paid.  Thereupon  an  order  shall  be  ehtercd  dropping  the  case  from  the 
trial  calendar,  subject  to  reinstatement  within  one  year  upon  application 
to  the  court  by  either  party,  in  which  event  it  shall  be  heard  at  the 
earliest  convenient  day.  If  not  so  reinstated  within  the  year,  the  suit 
shall  be  dismissed  without  prejudice  to  a  new  one.)  (New.) 

Rule  58.  Discovery — Interrogatories — Inspection  and  production  of 
documents — Admission  of  execution  or  genuineness.  The  plaintiff  at  any 
time  after  filing  the  bill  and  not  later  than  twenty-one  days  after  the 
joinder  of  issue,  and  the  defendant  at  any  time  after  filing  his  answer 
and  not  later  than  twenty-one  days  after  the  joinder  of  issue,  and  either 
party  at  any  time  thereafter  by  leave  of  the  court  or  judge,  may  file 
interrogatories  in  writing  for  the  discovery  by  the  opposite  party  or 
parties  of  facts  and  documents  material  to  the  support  or  defense  of  the ' 
cause,  with  a  note  at  the  foot  thereof  stating  which  of  the  interrogatories 
each  of  the  parties  is  required  to  answer.  But  no  party  shall  file  more 
than  one  set  of  interrogatories  to  the  same  party  without  leave  of  the 
court  or  judge. 

If  any  party  to  the  cause  is  a  public  or  private  corporation,  any 
opposite  party  may  apply  to  the  court  or  judge  for  an  order  allowinu' 
him  to  file  interrogatories  to  be  answered  by  any  officer  of  the  corpora- 
tion, and  an  order  may  be  made  accordingly  for  the  examination  of  such 
officer  as  may  appear  to  be  proper  upon  such  interrogatories  as  the  court 
or  judge  shall  think  fit. 

Copies  shall  be  filed  for  the  use  of  the  interrogated  party  and  shall  ho 
sent  by  the  clerk  to  the  respective  solicitors  of  record,  or  to  the  h-i 
known  address  of  the  opposite  party  if  there  be  no  record  solicitor. 

Interrogatories  shall  be  answered,  and  the  answers  filed  in  the  clerk's 
office,  within  fifteen  days  after  they  have  been  served,  unless  the  time  bo 
enlarged  by  the  court  or  judge.  Each  interrogatory  shall  b«  answered 
separately  and  fully  and  the  answers  shall  be  in  writing,  under  oath,  and 


990  APPENDIX. 

signed  by  the  party  or  corporate  officer  interrogated.  Within  ten  days 
after  the  service  of  interrogatories,  objections  to  them,  or  any  of  them, 
may  be  presented  to  the  court  or  judge,  with  proof  of  notice  of  the  pur- 
pose .so  to  do,  and  answers  shall  be  deferred  until  the  objections  are  de- 
termined, which  shall  be  at  as  early  a  time  as  is  practicable.  In  so  far 
as  the  objections  are  sustained,  answers  shall  not  be  required. 

(The  court  or  judge,  upon  motion  and  reasonable  notice,  may  make 
all  such  orders  as  may  be  appropriate  to  enforce  answers  to  interroga- 
tories or  to  effect  the  inspection  or  production  of  documents  in  the  pos- 
session of  either  party  and  containing  evidence  material  to  the  cause 
of  action  or  defense  of  his  adversary.  Any  party  failing  or  refusing 
to  comply  with  such  an  order  shall  be  liable  to  attachment,  and  shall 
also  be  liable,  if  a  plaintiff,  to  have  his  bill  dismissed,  and,  if  a  defendant, 
to  have  his  answer  stricken  out  and  be  placed  in  the  same  situation  as  if 
he  had  failed  to  answer.)  (See  2nd  pt.  18.) 

/    By  a  demand  served  ten  days  before  the  trial,  either  party  may  call  on 
'  the  other  to  admit  in  writing  the  execution  or  genuineness  of  any  docu- 
i   ment,  letter  or  other  writing,  saving  all  just  exceptions;  and  if  such 
-<    admission  be  not  made  within  five  days  after  such  service,  the  costs  of 
I    proving  the  document,  letter  or  writing  shall  be  paid  by  the  party  refus- 
ing or  neglecting  to  make  such  admission,  unless  at  the  trial  the  court 
vshall  find  that  the  refusal  or  neglect  was  reasonable. 

Supersedes  40,  41,  42,  43,  44,  64  and  2d  pt.  18.  Drawn  from  order 
XXXI,  English  practice. 

Rule  59.  Reference  to  master — Exceptional,  not  usual.  (Save  in  mat- 
ters of  account,  a  reference  to  a  master  shall  be  the  exception,  not  the 
rule,  and  shall  be  made  only  upon  a  showing  that  some  exceptional  con- 
dition requires  it.)  (New.)  (When  such  a  reference  is  made,  the  party 
at  whose  instance  or  for  whose  benefit  it  is  made  shall  cause  the  order  of 
reference  to  be  presented  to  the  master  for  a  hearing1  within  twenty  days 
succeeding  the  time  when  the  reference  was  made,  unless  a  longer  time  be 
specially  granted  by  the  court  or  judge;  if  he  shall  omit  to  do  so,  the 
adverse  party  shall  be  at  liberty  forthwith  to  cause  proceedings  to  be 
had  before  the  master,  at  the  costs  of  the  party  procuring  the  reference.) 
(74.) 

i  Omitting  "on  or  before  next  rule  day,"  and  substituting  "within  twenty 

days." 

Rule  60.  Proceedings  before  master.  (Upon  every  such  reference,  it 
shall  be  the  duty  of  the  master,  as  soon  as  he  reasonably  can  after  the 


EQUITY  RULES.  991 

same  is  brought  before  him,  to  assign  a  time  and  place  for  proceedings 
in  the  same,  and  to  give  due  notice  thereof  to  each  of  the  parties,  or  their 
solicitors;  and  if  either  party  shall  fail  to  appear  at  the  time  and  place 
appointed,  the  master  shall  be  at  liberty  to  proceed  ex  partf,  or,  in  bis 
discretion,  to  adjourn  the  examination  and  proceedings  to  a  future  day, 
giving  notice  to  the  absent  party  or  his  solicitor  of  such  adjournment; 
and  it  shall  be  the  duty  of  the  master  to  proceed  with  all  reasonable 
diligence  in  every  such  reference,  and  with  the  least  practicable  delay, 
and  either  party  shall  be  at  liberty  to  apply  to  the  court,  or  a  judge 
thereof,  for  an  order  to  the  master  to  speed  the  proceedings  and  to  make 
his  report,  and  to  certify  to  the  court  or  judge  the  reason  for  any  de- 
lay.) (Identical  75.) 

Rule  61.  Master's  report — Documents  identified  but  not  set  forth. 
(In  the  reports  made  by  the  master  to  the  court,  no  part  of  any  state  of 
facts,  account,  charge,  affidavit,  deposition,  examination,  or  answer 
brought  in  or  used  before  him  shall  be  stated  or  recited.  But  such 
state  of  facts,  account,  charge,  affidavit,  deposition,  examination,  or 
answer  shall  be  identified,  and  referred  to,  so  as  to  inform  the  court 
what  state  of  facts,  account,  charge,  affidavit,  deposition,  examination, 
or  answer  were  so  brought  in  or  used.)  (Identical  76.) 

'Rule  62.  Powers  of  master.  (The  master  shall  regulate  all  the  pro- 
ceedings in  every  hearing  before  him,  upon  every  reference ;  and  he  shall 
have  full  authority  to  examine  the  parties  in  the  cause,  upon  oath,  touching 
all  matters  contained  in  the  reference;  and  also  to  require  the  produc- 
tion of  all  books,  papers,  writings,  vouchers,  and  other  documents  ap- 
plicable thereto;  and  also  to  examine  on  oath,  viva  voce,  all  witnesses 
produced  by  the  parties  before  him,1  or  by  deposition,  according  to  the  acts 
of  Congress,  or  otherwise,  as  here  provided;  and  also  to  direct  the  mode 
in  which  the  matters  requiring  evidence  shall  be  proved  before  him ;  and 
generally  to  do  all  other  acts,  and  direct  all  other  inquiries  and  proceed- 
ings in  the  matters  before  him,  which  he  may  deem  necessary  and  proper 
to  the  justice  and  merits  thereof  and  the  rights  of  the  parties.)  (77.) 

1  Formerly  read  after  note  number  to  the  word  "provided"  as  follows:  "and 
to  order  the  examination  of  other  witnesses  to  be  taken  under  commission  to 
be  issued  upon  his  certificate  from  the  clerk's  office,  or  by  deposition,  according 
to  acts  of  Congress  or  otherwise,  as  hereinafter  proviih-d." 

See  Foote  v.  Silsby,  3  Blatchf.  507;  Consolidated  FasU-ner  Oo.  v.  Columbian 
Co.,  85  Fed.  54;  Bate  Refrigerator  Co.  v.  Gillette,  28  Fed.  «73;  White  v.  Rail- 
road  Co.,  79  Fed.  113;  Deitch  v.  Staub,  115  Fed.  309;  Willing  w.  La  B«w,  82 
Fed.  293;  Lull  v.  Clark,  20  Fed.  454. 


992  APPENDIX. 

Rule  63.  Form  of  accounts  before  master.  (All  parties  accounting 
before  a  master  shall  bring  in  their  respective  accounts  in  the  form  of 
debtor  and  creditor ;  and  any  of  the  other  parties  who  shall  not  be  satis- 
fied with  the  account  so  brought  in  shall  be  at  liberty  to  examine  the 
accounting  party  viva  voce,  or  upon  interrogatories,1  as  the  master  shall 
direct.)  (79.) 

1  Omitted  "in  the  master's  office,  or  by  deposition." 

Rule  64.  Former  deposition,  etc.,  may  be  used  before  master.  (All 
affidavits,  depositions  and  documents  which  have  been  previously  made, 
read,  or  used  in  the  court  upon  any  proceeding  in  any  cause  or  matter 
may  be  used  before  the  master.)  (Identical  80.) 

Rule  65.  Claimants  before  master  examinable  by  him.  (The  master 
shall  be  at  liberty  to  examine  any  creditor  or  other  person  coming  in  to 
claim  before  him,  either  upon  written  interrogatories  or  viva  voce,  or  in 
both  modes,  as  the  nature  of  the  case  may  appear  to  him  to  require.  The 
evidence  upon  such  examination  shall  be  taken  down  by  the  master,  or 
by  some  other  person  by  his  order  and  in  his  presence,  if  either  party 
requires  it,  in  order  that  the  same  may  be  used  by  the  court  if  necessary. ) 
(Identical  81.) 

•i 

Rule  66.  Return  of  master's  report — Exceptions — Hearing.  (The 
master,  as  soon  as  his  report  is  ready,  shall  return  the  same  into  the 
clerk's  office  and  the  day  of  the  return  shall  be  entered  by  the  clerk  in 
the  Equity  Docket.  The  parties  shall  have  twenty  days1  from  the  time 
of  the  filing  of  the  report  to  file  exceptions  thereto,  and  if  no  exceptions 
are  within  that  period  filed  by  either  party,  the  report  shall  stand  con- 
firmed. If  exceptions  are  filed,  they  shall  stand  for  hearing  before  the 
court,  if  then  in  session,  or,  if  not,  at  the  next  sitting  held  thereafter, 
by  adjournment  or  otherwise.')  (83.) 

1  Formerly  "one  month." 

Rule  67.  Costs  on  exceptions  to  master's  report.  (In  order  to  prevent 
exceptions  to  reports  from  being  filed  for  frivolous  causes,  or  for  mere 
delay,  the  party  whose  exceptions  are  overruled,  shall,  for  every  excep- 
tion overruled,  pay  five  dollars  costs  to  the  other  party,  and  for  every 
exception  allowed  shall  be  entitled  to  the  same  costs.)  (84,  fixing  the 
costs  at  five  dollars.) 


EQUITY   RULES.  993 

Rule  68.  Appointment  and  compensation  of  masters.  (The  district'1 
courts  may  appoint  standing  masters  in  chancery  in  their  respective 
districts  a  majority  of  all2  the  judges  thereof  concurring  in  the  appoint- 
ment, and  they  may  also  appoint  a  master  pro  hoc  vice  in  any  particular 
case.  The  compensation  to  be  allowed  to  every  master8  shall  be  fixed 
by  the  district1  court,  in  its  discretion,  having  regard  to  all  the  circum- 
stances thereof,  and  the  compensation  shall  be  charged  upon  and  borne 
by  such  of  the  parties  in  the  cause  as  the  court  shall  direct.  The  pi" 
shall  not  retain  his  report  as  security  for  his  compensation;  but  when 
the  compensation  is  allowed  by  the  court,  he  shall  be  entitled  to  an  at- 
tachment for  the  amount  against  the  party  who  is  ordered  to  pay  the  same, 
if,  upon  notice  thereof,  he  does  not  pay  it  within  the  time  prescribed  by 
the  court.)  (82.) 

1  Formerly  "circuit." 

2  Formerly  "both." 

8  Omitted  "in  chancery  for  his  services  in  any  particular  ease." 

Rule  69.  Petition  for  rehearing.  (Every  petition  for  a  rehearing 
shall  contain  the  special  matter  or  cause  on  which  such  rehearing  is  ap- 
plied for,  shall  be  signed  by  counsel,  and  the  facts  therein  stated,  if  not 
apparent  on  the  record,  shall  be  verified  by  the  oath  of  the  party  or  by 
some  other  person.  No  rehearing  shall  be  granted  after  the  term  at 
which  the  final  decree  of  the  court  shall  have  been  entered  and  recorded, 
if  an  appeal  lies  to  the  circuit  court  of  appeals  or  the  Supreme  Court. 
But  if  no  appeal  lies,  the  petition  may  be  admitted  at  any  time  befor* 
the  end  of  the  next  term  of  the  court,  in  the  discretion  of  the  court.) 

Identical  with  old  rule  88,  with  the  addition  of  the  words,  "circuit 
court  of  appeals." 

See  Giant  Powder  Co.  v.  Cal.  Powder  Co.,  5  Fed.  197;  McLeod  v.  NYw 
Albany,  66  Fed.  378;  Brook  v.  Railroad  Co.,  102  U.  S.  107,  2G  L.  Ed.  5)1. 

Rule  70.  Suits  by  or  against  incompetents.  (Guardian  ad  litem  to 
defend  a  suit  may  be  appointed  by  the  court,  or  by  any  judge  thereof,  for 
infants  or  other  persons  who  are  under  guardianship,  or  otherwise  in- 
capable of  suing  for  themselves.  All  infants  and  other  persons  so  in- 
capable may  sue  by  their  guardians,  if  any,  or  by  their  prochein  ami; 
subject,  however,  to  such  orders  as  the  court  or  jtydgp  may  din  ••(  tor  the 
protection  of  infants  and  other  persons.)  (Identical  87.) 

Rule  71.    Form  of  decree.     (In  drawing  up  decrees  and  orders,  i* 
the  bill,  nor  answer,  nor  other  pleadings,  nor  any  part  thereof,  nor  the 

Manual — 08 


994  APPENDIX. 

report  of  any  master,  nor  any  other  prior  proceeding,  shall  be  recited  or 
stated  in  the  decree  or  order;  but  the  decree  and  order  shall  begin,  in  sub- 
stance, as  follows:  "This  cause  came  on  to  be  heard  [or  to  be  further 
heard,  as  the  case  may  be]  at  this  term,  and  was  argued  by  counsel ;  and 
thereupon,  upon  consideration  thereof,  it  was  ordered,  adjudged  and 
decreed  as  follows,  viz."  [Here  insert  the  decree  or  order.]  (Identical 
86.) 

Rule  72.  Correction  of  clerical  mistakes  in  orders  and  decrees. 
(Clerical  mistakes  in  decrees  or  decretal  orders,  or  errors  arising  from 
any  accidental  slip  or  omission,  may,  at  any  time  before1  the  close  of  the 
term  at  which  final  decree  is  rendered,  be  corrected  by  order  of  the 
court  or  a  judge  thereof,  upon  petition,  without  the  form  or  expense 
of  a  rehearing.)  (85.) 

l  Substitutes  "the  close  of  the  term  at  which  final  decree  is  rendered"  for 
the  words,  "an  actual  enrollment  thereof." 

Rule  73.  Preliminary  injunctions  and  temporary  restraining  orders. 
(No  preliminary  injunction  shall  be  granted  without  notice  to  the  opposite 
party.  Nor  shall  any  temporary  restraining  order  be  granted  without 
notice  to  the  opposite  party,  unless  it  shall  clearly  appear  from  specific 
facts,  shown  by  affidavit  or  by  the  verified  bill,  that  immediate  and  ir- 
reparable loss  or  damage  will  result  to  the  applicant  before  the  matter 
can  be  heard  on  notice.  In  case  a  temporary  restraining  order  shall  be 
granted  without  notice,  in  the  contingency  specified,  the  matter  shall  be 
made  returnable  at  the  earliest  possible  time,  and  in  no  event  later  than 
ten  days  from  the  date  of  the  order,  and  shall  take  precedence  of  all 
matters,  except  older  matters  of  the  same  character.  When  the  matter 
comes  up  for  hearing  the  party  who  obtained  the  temporary  restraining 
order  shall  proceed  with  his  application  for  a  preliminary  injunction, 
and  if  he  does  not  do  so  the  court  shall  dissolve  his  temporary  restrain- 
ing order.  Upon  two  days'  notice  to  the  party  obtaining  such  temporary 
restraining  order,  the  opposite  party  may  appear  and  move  the  dissolution 
or  modification  of  the  order,  and  in  that  event  the  court  or  judge  shall 
proceed  to  hear  and  determine  the  motion  as  expeditiously  as  the  ends 
of  justice  may  require.  Every  temporary  restraining  order  shall  be 
forthwith  filed  in  the  clerk's  office.)  (New.  Changing  the  practice  under 
55.) 

Rule  74.  Injunction  pending  appeal.  (When  an  appeal  from  a  final 
decree  in  an  equity  suit  granting  or  dissolving  an  injunction  is  allowed 


EQUITY  RULES.  995 

by  a  justice  or  a  judge  who  took  part  in  the  decision  of  the  cause  he  may, 
in  his  discretion,  at  the  time  of  such  allowance  mate  an  order  suspending, 
modifying,1  or  restoring  the  injunction  during  the  pendency  of  the 
appeal  upon  such  terms  as  to  bond  or  otherwise  as  he  may  consider 
proper  for  the  security  of  the  rights  of  the  opposite  party.)  (93.) 

i  Add  words  following  note  number  "or  restoring." 

Rule  75.    Record  on  appeal— Reduction  and  preparation.    (In  case  of 
appeal : 

(a)  It  shall  be  the  duty  of  the  appellant  or  his  solicitor  to  file  with 
the  clerk  of  the  court  from  which  the  appeal  is  prosecuted,  together  with 
proof  or  acknowledgment  of  service  of  a  copy  on  the  appellee  or  his 
solicitor,  a  precipe  which  shall  indicate  the  portions  of  the  record  to  be 
incorporated  into  the  transcript  on  such  appeal.     Should  the  appellee  or 
his  solicitor  desire  additional  portions  of  the  record  incorporated  into  the 
transcript,  he  shall  file  with  the  clerk  of  the  court  his  precipe  also  within 
10  days  thereafter,  unless  the  time  shall  be  enlarged  by  the  court  or  a 
judge  thereof,  indicating  such  additional  portions  of  the  record  desired  by 
him. 

(b)  The  evidence  to  be  included  in  the  record  shall  not  be  set  forth  in 
full,  but  shall  be  stated  in  simple  and  condensed  form,  all  parts  not  es- 
sential to  the  decision  of  the  questions  presented  by  the  appeal  being 
omitted  and  the  testimony  of  witnesses  being  stated  only  in  narrative 
form,  save  that  if  either  party  desires  it,  and  the  court  or  judge  so 
directs,  any  part  of  the  testimony  shall  be  reproduced  in  the  exact  words 
of  the  witness.     The  duty  of  so  condensing  and  stating  the  evidence  shall 
rest  primarily  on  the  appellant,  who  shall  prepare  his  statement  thereof 
and  lodge  the  same  in  the  clerk's  office  for  the  examination  of  the  other 
parties  at  or  before  the  time  of  filing  his  precipe  under  paragraph   (a) 
of  this  rule.    He  shall  also  notify  the  other  parties  or  their  solicitors 
of  such  lodgment  and  shall  name  a  time  and  place  when  he  will  ask  the 
court  or  judge  to  approve  the  statement,  the  time  so  named  to  be  at  least 
10  days  after  such  notice.    At  the  expiration  of  the  time  named  or  such 
further  time  as  the  court  or  judge  may  allow,  the  statement,  together 
with  any  objections  made  or  amendments  proposed  by  any  party,  shall 
be  presented  to  the  court  or  the  judge  and  if  the  statement  be  true,  com- 
plete, and  properly  prepared,  it  shall  be  approved  by  the  court  or  judge, 
and  if  it  be  not  true,  complete,  or  properly  prepared,  it  shall  be  made 
so  under  the  direction  of  the  court  or  judge  and  shall  then  be  approved. 
When  approved  it  shall  be  filed  in  the  clerk's  office  and  become  a  part  of 
the  record  for  the  purposes  of  the  appeal. 


996  APPENDIX. 

(c)  If  any  difference  arise  between  tlie  parties  concerning  directions  as 
to  the  general  contents  of  the  record  to  be  prepared  on  the  appeal,  such 
difference  shall  be  submitted  to  the  court  or  judge  in  conformity  with  the 
provisions  of  paragraph  (b)  of  this  rule  and  shall  be  covered  by  the 
directions  which  the  court  or  judge  may  give  on  the  subject.)  (New.) 

Construction  by  Circuit  Court  of  Appeals — Per  Curiam.  Motions 
recently  decided  and  others  now  pending  involving  these  rules  justify 
a  formal  statement  of  our  conclusions. 

Rule  75  fixes  no  time  within  which  the  statement  of  evidence  must 
be  settled  and  filed  in  order  to  "become  a  part  of  the  record  for  the  pur- 
poses of  the  appeal."  Undoubtedly,  the  better  practice  is  to  complete 
this  step  before  claiming,  or,  at  least,  before  perfecting  the  appeal,  and  if 
the  term  expires  before  the  final  statement  of  evidence  is  filed,  to  enter  an 
order  carrying  this  matter  into  the  next  term;  but  where  appeals  are 
required  within  thirty  days,  or  even  within  ten  days,  the  time  may  be 
wholly  insufficient  to  perfect  the  record  in  this  respect,  and  the  expiration 
of  the  term  may  very  commonly  be  forgotten,  particularly  as  it  has 
never  been  a  matter  of  importance  in  equity  appeals.  It  is  said  that  the 
completing  of  this  statement  of  evidence  corresponds  to  the  settling 
of  a  bill  of  exceptions  at  law,  and  the  familiar  rule  is  invoked  that  a 
purported  bill  of  exceptions  which  was  not  settled  within  the  trial  term 
or  pursuant  to  a  reservation  during  the  trial  term  is  a  nullity  and  will 
be  stricken  from  the  record.  We  are  not  satisfied  that  the  analogy  is 
close  enough  to  justify  the  incorporation  of  this  harsh  rule  into  the 
practice  pursuant  to  rule  75,  which  must  have  been  adopted  with  due 
consideration  of  the  existing  practice  by  which  appeals  were  claimed 
and  perfected  regardless  of  the  expiration  of  terms;  and  we  conclude 
that  the  trial  court  has  power  to  approve  and  direct  the  filing  of  the 
statement  of  evidence,  although  the  term  has  expired  when  the  decree 
was  rendered,  and  although  no  order  was  entered  carrying  the  subject- 
matter  over  until  the  next  term. 

The  same  general  view  leads  also  to  the  conclusion  that  the  perfect- 
ing of  an  appeal  by  the  approval  of  a  bond  and  the  signing  of  citation 
does  not  deprive  the  trial  court  of  jurisdiction  to  settle  the  evidence. 
It  is  true  that  for  general  purposes,  jurisdiction  over  the  cause  is  thereby 
ended,  and  that  the  shaping  of  this  statement  of  evidence  involves  the 
decision  by  the  judge  of  disputed  claims;  but,  upon  the  whole,  the  pro- 
ceeding is  rather  ministerial,  and  it  sufficiently  pertains  to  the  making 
of  the  return  to  the  appeal  so  that  we  think  a  statement  of  evidence 


EQUITY  BULBS.  997 

|p 

so  approved  and  filed  cannot,  for  that  reason  alone,  be  stricken  from  the 
record. 

Instances  occur  where  rule  75  is  wholly  disregarded,  and  the  return 
to  the  appeal  includes  the  evidence  in  full,  in  accordance  with  the  old 
practice,  and  we  are  asked  to  dismiss  appeals  where  the  ri-cord  is  so 
made  up,  or  to  strike  out  the  statement  of  evidence,  tlierehy  leading  to  an 
affi nuance.  To  send  the  record  back  for  correction  in  this  respect  in- 
volves delay  and  the  exercise  of  uncertain  power;  while  to  dismiss  the 
appeal  or  to  strike  all  the  evidence  from  the  record  may  cause  the  loss 
of  substantial  rights  through  the  blunder  in  practice  by  counsel.  This 
drastic  remedy  may  prove  to  be  necessary  in  some  cases,  but  we  are 
reluctant  to  apply  it  now.  The  enforcement  of  both  rules  rests, 
primarily,  upon  the  district  judges,  whose  obligation  we  pointed  out  in 
Pittsburgh  etc.  R.  Co.  v.  Glinn,  208  Fed.  989,  126  C.  C.  A.  77,  and  we 
have  no  doubt  that  they  will  observe  the  new  practice  when  approving 
a  statement  of  evidence  or  bill  of  exceptions;  but  in  equity  appeals,  if 
counsel  overlook  the  rule  and  follow  the  old  practice,  the  matter  may  not 
come  to  the  attention  of  the  trial  judge.  If  such  cases  occur,  the  clerk 
who  makes  return  to  the  appeal  should  not  include  the  evidence  in  full, 
and  his  due  attention  will  usually  prevent  informality  in  this  respect. 
In  those  instances,  however,  where  the  record  reaches  this  court  con- 
taining the  evidence  in  full,  we  think  general  equity  rule  76  provides  a 
remedy  which,  at  least  during  the  transition  in  the  general  practice, 
will  be  sufficient.  The  reference  in  rule  76  to  "any  kindred  rule"  quite 
clearly  applied  to -rule  75.  It  is  true  that  the  offending  solicitor  in  this 
situation  is  the  solicitor  for  appellant,  and  that  appellant  pays,  in  the 
first  instance,  the  entire  cost  of  printing,  so  that  if  he  is  unsuccessful 
in  this  court,  no  disposition  of  the  costs  of  printing  can  operate  as  a 
penalty,  but  if  he  is  successful,  he  can  be  denied  the  recovery  of  such 
costs;  and  the  further  affirmative  costs,  contemplated  by  rule  76,  might, 
in  a  proper  case,  be  imposed  upon  the  offending  solicitors.  222  Fed. 
8S4;  U.  S.  Comp.  Stats.  1916,  §  1536,  p.  2528. 

Rule  76.  Eecord  on  appeal — Reduction  and  preparation — Oosta — Cor- 
rection of  omissions.  (In  preparing  the  transcript  on  an  appeal,  especial 
care  shall  be  taken  to  avoid  the  inclusion  of  more  than  one  copy  of  the 
same  paper  and  to  exclude  the  formal  and  immaterial  parts  of  all  ex- 
hibits, documents  and  other  papers  included  therein ;  and  for  any  in- 
fraction of  this  or  any  kindred  rule  the  appellate  court  may  withhold 
or  impose  costs  as  the  circumstances  of  the  case  and  the  discouragement 


998  APPENDIX. 

of  like  infractions  in  the  future  may  require.     Costs  for  such  an  infrac- 
tion may  be  imposed  upon  offending  solicitors  as  well  as  parties. 

If,  in  the  transcript,  anything  material  to  either  party  be  omitted  by 
accident  or  error,  the  appellate  court,  on  a  proper  suggestion  or  its  own 
motion,  may  direct  that  the  omission  be  corrected  by  a  supplemental 
transcript.)  (New.) 

Rule  77.  Record  on  appeal — Agreed  statement.  (When  the  questions 
presented  by  an  appeal  can  be  determined  by  the  appellate  court  with- 
out an  examination  of  all  the  pleadings  and  evidence,  the  parties,  with 
the  approval  of  the  district  court  or  the  judge  thereof,  may  prepare  and 
sign  a  statement  of  the  case  showing  how  the  questions  arose  and  were 
decided  in  the  district  court  and  setting  forth  so  much  only  of  the  facts 
alleged  and  proved,  or  sought  to  be  proved,  as  is  essential  to  a  decision 
of  such  questions  by  the  appellate  court.  Such  statement,  when  filed  in 
the  office  of  the  clerk  of  the  district  court,  shall  be  treated  as  supersed- 
ing, for  the  purposes  of  the  appeal,  all  parts  of  the  record  other  than 
the  decree  from  which  the  appeal  is  taken,  and,  together  with  such  de- 
cree, shall  be  copied  and  certified  to  the  appellate  court  as  the  record 
on  appeal.)  (New.) 

Rule  78.  Affirmation  in  lieu  of  oath.  (Whenever  under  these  rules 
an  oath  is  or  may  be  required  to  be  taken,  the  party  may,  if  conscien- 
tiously scrupulous  of  taking  an  oath,  in  lieu  thereof  make  solemn  affirma- 
tion to  the  truth  of  the  facts  stated  by  him.)  (Identical  91.) 

Rule  79.  Additional  rules  by  district  court.  With  the  concurrence  of 
a  majority  of  the  circuit  judges  for  the  circuit,  the  district  courts  may 
make  any  other  and  further  rules  and  regulations  for  the  practice,  pro- 
ceedings and  process,  mesne  and  final,  in  their  respective  districts,  not 
inconsistent  with  the  rules  hereby  prescribed,1  and  from  time  to  time  alter 
and  amend  the  same. 

1  Omitted  "in  their  discretion." 
Supersedes  old  rules  89  and  90. 

Rule  80.  Computation  of  time — Sundays  and  holidays.  (When  the 
time  prescribed  by  these  rules  for  doing  any  act  expires  on  a  Sunday  or 
legal  holiday,  such  time  shall  extend  to  and  include  the  next  succeeding 
day  that  is  not  a  Sunday  or  legal  holiday.)  (New.) 

Rule  81.  These  rules  effective  February  1,  1913 — Old  rules  abrogated. 
(These  rules  shall  be  in  force  on  and  after  February  1,  1913,  and  shall 


EQUITY  RULES.  999 

govern  all  proceedings  in  cases  then  pending  or  thereafter  brought,  save 
that  where  in  any  then  pending  cause  an  order  has  been  made  or  act 
done  which  cannot  be  changed  without  doing  substantial  injustice,  the 
court  may  give  effect  to  such  order  or  act  to  the  extent  necessary  to  avoid 
any  such  injustice. 

All  rules  theretofore  prescribed  by  the  Supreme  Court,  regulating 
the  practice  in  suits  in  equity,  shall  be  abrogated  when  these  rules  take 
effect)  (New.) 


Bule 

Abatement,  defenses  formerly  presentable  by,  to  be  made  in  answer 29 

Absence  of  persons  who  would  be  proper  parties 39 

Account: 

Matters  of,  reference  to  master 59 

To  be  identified  but  not  stated  in  master's  report 61 

Forms  of,  before  master 63 

Action: 

At  law,  erroneously  begun  as  suit  in  equity,  transfer 28 

Joinder  of,  causes  of 26 

To  be  presented  in  name  of  real  party  in  interest '  37 

Additional  rules,  by  district  court 79 

Administrator  as  party 37 

Admissibility  of  evidence  offered  to  be  passed  on  by  court 46 

Admission  of  execution,  etc.,  of  documents,  etc 58 

Advancement  of  causes,  notice  of  interlocutory  orders,  etc 6 

Affidavit: 

Plaintiff's,  of  noncompliance  with  decree,  attachment  to  issue 8 

To  be  made  of  service  of  process  by  person  appointed  therefor....  15 

Of  expert  witnesses  in  patent  and  trade-mark  cases,  provisions  as  to  48 

Required  on  application  for  continuance 57 

To  be  identified  but  not  stated  in  master's  report 61 

Previously  used  in  court,  etc.,  may  be  used  before  master 64 

On  application  for  preliminary  injunction 

Affirmation  in  lieu  of  oath 78 

Agreed  statement,  record  on  appeal 77 

Alternative  defenses  may  be  stated  in  answer 30 

Amended  bill,  answer  to 32 

Amendments: 

Generally    19 

Permitted  of  any  process,  pleading,  record,  etc 19 

Of  bill- 
As  of  course 28 

Not  after  defendant's  pleading    filed,  except,  etc 2* 

On  suggestion  of  defect  of  parties  . ....'....:•«;.«  «4.Z* 43 

Of  pleadings  on  substitution  of  parties 45 

(1001) 


1002  APPENDIX. 

Answer:  Bule 

Subpoena,  proper  process  to  compel * 7 

Time  for 12 

To  be  filed  within  time  named  in  subpoena 16 

Enlarging  time  for  filing 17 

When  to  be  filed,  on  motion  to  set  aside  decree  pro  confesso 17 

Exceptions  to,  for  scandal  and  impertinence,  shall  not  obtain 21 

Defenses  to  be  presented  in 29 

To  be  filed  if  motion  to  dismiss  denied 23 

If  not  filed,  decree  pro  confesso  entered 29 

Defenses  formerly  presentable  by  plea  in  bar  or  abatement,  to  be 

made  in 29 

What  to  contain   30 

Amendment  of,  by  leave,  on  reasonable  notice 30 

To  omit  statement  of  evidence 30 

To  avoid  general  denial  of  averments  of  bill 30 

To  specifically  admit,  or  deny,  or  explain  facts  upon  which  plain- 
tiff relies 30 

Contents,  counterclaim  30 

To  state  counterclaims 30 

May  state  defenses  in  alternative 30 

Cause  at  issue  on  filing  of,  unless,  etc 31 

To  amended  bill 32 

New  or  supplemental,  to  be  filed  to  amended  bill 32 

Exceptions  for  insufficiency  of,  abolished 33 

If  insufficient  may  be  amended  or  matter  stricken  out 33 

When  defect  of  parties  suggested,  proceedings  on 43 

May  be  stricken  out  for  failure  to  answer  interrogations  or  produce 

documents    • 58 

To  be  identified  but  not  stated  in  master's  report 61 

Appeal: 

Injunction  pending 74  • 

Record  on — 

Differences  as  to 75 

Reduction  and  preparation « 75 

Costs — correction  of  omissions 76 

Agreed  statement 77 

Appearance: 

Filed  with  clerk  to  be  noted  in  equity  docket 8 

Subpoena  proper  process  to  compel 7 

Appellant: 

To  notify  opposing  party  or  solicitors,  etc 75 

To  file  predpe  indicating  portion  of  record  on  appeal 75 

To  condense  evidence,  etc , 75 


INDEX  TO  EQUITY  KULES.  HKM 

Appellate  conrt:  Hule 

Not  to  reverse  decree  unless 46 

May  direct  further  steps  as  justice  may  require 46 

Appellee  to  file  precipe  indicating  additional  portions  of  record*  on  appeal  75 

Appointment  and  fees  of  stenographers  50 

Appointment  and  compensation  of  masters 68 

Assistance,  writ  of: 

When  to  issue  7 

On  refusal  to  obey  decree  for  delivery  of  possession 9 

Attachment: 

Provisions  as  to  7 

For  noncompliance  with  decree " 8 

Not  to  be  discharged  unless  upon  full  compliance  with  decree,  etc..  8 

May  issue  for  failure  to  answer  interrogatories  or  produce  documents  58 

Attendance  of  witnesses  before  commissioner,  master,  or  examiner 52 

Averments  of  bill,  if  not  denied,  deemed  confessed,  except,  etc 30 

Bill: 

Subpoena  proper  mesne  process  to  compel  appearance  and  answer  to  7 

When  filed,  clerk  to  issue  subpoena 12 

May  be  taken  pro  confesso  if  answer  not  filed,  etc 12 

Exceptions  to,  for  scandal  and  impertinence,  shall  not  obtain 21 

To  be  signed  by  solicitors 24 

Of  complaint,  contents 25 

Stockholder's    27 

Stockholder's,  what  to  contain 27 

Amendment  of,  as  of  course 28 

Amended,  answer  to  32 

Supplemental,  what  necessary  in 35 

Of  revivor  and  supplemental  bills,  what  necessary  in 35 

May  be  dismissed  for  failure  to  answer  interrogatories  or  produce 

documents • 58 

Verification  of,  on  application  for  preliminary  injunction,  etc 73 

Bond  on  order  suspending,  etc.,  injunction  pending  appeal 74 

Books: 

Clerk  to  keep  equity  docket,  order  book,  equity  journal S 

Papers,  etc.,  production  of,  required  by  master 62 

Calendar,  trial  case  goes  on,  when 56 

Cause,  speeding,  provision  as  to,  on  motion  to  set  aside  decree  pro  con- 

fesso 17 

Causes: 

Advancement,  conduct  and  hearing  of,  notice  of  interlocutory  order* 

for  « • 

Of  action,  joinder  of  26 

Frivolous,  imposition  of  costs  on  exceptions  to  master's  report 67 


1004  APPENDIX. 

/ 

Bule 

Certificate,  signature  of  solicitor  to  pleading  to  be  considered 24 

Chambers,  awarding  process,  commissions,  orders,  rules,  etc.,  by  judge  at  1 

Charge  to  t>e  identified  but  not  stated  in  master's  report 61 

Circuit  court  of  appeals,  if  appeal  lies  to,  rehearing  not  granted  after 

term 69 

Circuit  judge  may  dispense  with  motion  day  if  public  interest  permits. .  6 

Citizenship,  name,  and  residence  of  each  party  to  be  stated  in  bill....  25 

Claim,  further  and  better  statement  of  nature  of,  may  be  ordered 20 

Claimants  before  master,  examinable  by  him 65 

Class,  representatives  of,  may  sue  or  defend 38 

Clerical  mistakes  in  orders  and  decrees,  correction  of 72 

Clerk: 

Duties  of 2 

• 
To  keep — 

Equity  docket  ".  3 

Order  book 3 

Equity  journal    S 

Motions  grantable  of  course  by 5 

To  grant  as  of  course,  motions  and  applications  not  requiring  order 

of  court  or  judge  5 

To  issue  writ  of  assistance  on  refusal  to  obey  decree  for  delivery  of 

possession  9 

To  issue  subpoena  when  bill  filed,  and  not  before 12 

Of  court,  verification  of  pleadings  before 36 

To  send  copies  of  interrogatories  to  solicitors  of  record 58 

Office  of — 

Awarding  of  process,  commissions,  orders,  rules,  etc.,  by  judge 

at    1 

When  open. 2 

Master  to  return  report  into 66 

Temporary  restraining  orders  to  be  filed  in i 73 

Statement  as  to  appeal  to  be  filed  in 75 

Commissioner,  attendance  of  witnesses  before 52 

Commissions,  award  of,  by  judge  at  chambers,  etc 1 

Compensation  and  appointment  of  masters 68 

Compensation  of  master  to  be  fixed  by  court 68 

Competency,  etc.,  of  questions  asked  before  examiner  not  to  be  decided  by 

him    51 

Computation  of  time — Sundays  and  holidays 80 

Conduct  of  causes,  notice  of  interlocutory  orders  for 6 

Contempt  for  noncompliance  with  mandatory  order,  etc 8 

Continuances,  provisions  as  to 57 


INDEX  TO  EQUITY  RULES.  1 

r 

Copv  of  prcctpo:  Ro,e 

Indicating  portions  of  record  on  appeal 

Service  of,  indicating,  etc 

Corporate  officer  to  sign  interrogatories  under  oath 58 

Corporations: 

When  interrogatories  to  be  answered  by  officer  of 68 

Stockholder's  bill  against , 

Correction: 

Clerical  mistakes  in  orders  and  decrees 72 

Omissions  in  transcript  on  appeal 76 

Costs: 

Payment  of,  and  full  compliance  with  decree  before  a  discharge  of 

attachment    8 

Of  plaintiff  to  be  paid  before  court  will  set  aside  decree  pro  confctto, 

etc 17 

Terms  as  to,  when  further  and  particular  statement  in  pleading  ft* 

quired    20 

To  nominal  parties   40 

Stenographer's  fees  to  be  taxed  as 50 

Of  incompetent,  etc.,  depositions  to  be  dealt  with  by  court 51 

On  continuances,  provisions  as  to 57 

On  proving  .execution  or  genuineness  of  document,  etc 58 

On  reference  to  master 59 

On  exception  to  master's  report 67 

May  be  imposed  upon  offending  solicitors 76 

Imposition  of,  for  infraction  of  rule  as  to  record  on  appeal 76 

Counsel: 

Signature  of   24 

To  give  notice  of  taking  testimony  before  examiner,  etc 53 

Consent  of,  to  continuances,  provisions  as  to 57 

To  sign  petition  for  rehearing 69  , 

Counterclaim: 

To  be  stated  in  answer  30 

To  be  replied  to 81 

In  default  of  reply  to,  decree  pro  oonfctto  entered 81 

Court: 

On  motion  or  own  initiative,  may  order  redundant,  impertinent,  or 

scandalous  matter  stricken  out 21 

Testimony  usually  to  be  taken  in,  at  trial 46 

To  deal  with  cost  of  incompetent,  etc.,  depositions 51 

Contempt  of,  by  witness  refusing  to  appear  before  commi**ioner, 
master,  or  examiner   t 52 


1006  APPENDIX. 

Court:  Rule 

May  appoint  standing  masters  in  chancery 68 

Provisions  as  to  approval  by,  of  appellant's  statement,  etc.,  on  ap- 
peal      75 

District,  additional  rules  by 79 

Creditor  making  claim  before  master  examinable  by  him 65 

Cross  bill — counterclaim  to  be  stated  in  answer,  and  not  by 30 

Cross-examination  of  expert  witnesses  in  patent  and  trade-mark  cases. .  48 

Cross-examination  of  witness  where  no  notice  of  deposition  given 54 

Damage: 

Averments  in  bill  as  to 30 

To  be  shown  on  application  for  preliminary  injunction 73 

Death  of  party,  revivor 45 

Decrees  of  court  to  be  entered  in  equity  journal , . .  3 

Decrees: 

Process  to  issue  to  compel  obedience  to 7 

Compelling  obedience  to,  writ  of  sequestration 8 

Discharge  of  attachment  upon  compliance  with 8 

For  specific  performance,  provision  as  to 8 

For  performance  of  specific  act,  attachment  when 8 

Solely  for  payment  of  money,  writ  of  execution  on 8 

Final,  enforcement  of 8 

For  delivery  of  possession,  writ  of  assistance  on  refusal  to  obey ....  9 

For  deficiency  in  foreclosure,  etc 10 

Pro  confesso — 

On  default  in  answer 16 

When  may  be  set  aside  17 

To  be  followed  by  final  decree 17 

Final,  following  decree  pro  confesso — 
Pro  confesso — 

Entered,  if  answer  not  filed,  etc 29 

In  default  of  reply  to  counterclaim 31 

Not  to  be  reversed  unless  material  prejudice  would  result 46 

Form  of    71 

Shall  not  recite  pleadings 71 

Correction  of  clerical  mistakes  in 72 

Final,  appeals  from  in  injunction  suits 74 

To  be  sent  up  with  agreed  statement  on  appeal 77 

Deeds,  etc.,  decree  for  delivering  up,  attachment  in 8 

Default: 

To  answer,  bill  taken  pro  confesso -. 16 

Of  reply  to  counterclaim,  decree  pro  confesso 31 

In  answer  to  amended  bill,  proceedings  on 32 


INDEX  TO  EQUITY  BULKS.  1007 

Defect:  Bnj, 

Court  t«  disregard  IB  proceeding  not  affecting  substantial  rights...  19 
Of  parties — 

Resisting  objection 4.1 

Tardy  objection  to 44 

Defendant: 

Subpoena  proper  process  to  compel  appearance  and  answer  of 7 

If  not  found,  writ  of  sequestration  proper  process  to  issue,  etc....  7 

To  take  notice  of  certain  decrees 8 

Required  to  file  answer  on  or  before  twentieth  day.  after  service  of 

subpoena  12 

Service  of  subpoena  to  be  upon ^ 1  :< 

To  answer  within  time  named  in  -subpoena 16 

Person  refusing  to  join  as  plaintiff  or  defendant  may  be  made  de- 
fendant   17 

Time  within  which  to  take  deposition  for. . . '. 47 

Defense: 

Further  and  better  statement  of  nature  of,  may  be  ordered 20 

How  presented    29 

What  to  be  heard  separately  and  disposed  of  before  trial,  etc 29 

Testing   sufficiency  of    S3 

Deficiency  in  foreclosure,  etc.,  decree  for .- .  10 

Delay: 

Signature  of  solicitor  to  pleadings  certificate  that  pleadings  not  in- 
terposed for 24 

Master  to  certify  reason  for  any  to  court 60 

Imposition  of  costs  for,  on  exceptions  to  master's  report 67 

Delivery  of  possession,  writ  of  assistance  to  enforce 7 

Demands,  joint  and  several 

Demurrers  abolished 2* 

Depositions : 

To  be  taken  in  exceptional  instances 47 

Time  within  which  to  be  taken 47 

Taken  before  examiners,  et« 49 

Expense  of  taking  to  be  advanced  by  party  calling  witnesses 50 

Court  to  deal  with  costs  of  incompetent,  etc 51 

Under  R.  S.  863,  865,  866,  867 — cross-examination 54 

Deemed  published  when  filed 55 

On  expiration  of  time  for,  case  goes  on  trial  calendar 56 

To  be  identified  but  not  set  forth  in  master's  report 61 

May  be  taken  by  master 62 

Etc.,  former,  may  be  used  before  master 64 

Previously  used  in  court  may  be  used  before  master 64 


1008  APPENDIX. 

t 

Rule 

Differences  concerning  directions,  as  to  contents  of  record  on  appeal,  pro- 
visions as  to    75 

Disability  of  any  party  to  be  stated  in  bill 25 

Discovery,  interrogatories  for,  when  to  be  filed 58 

Dismiss,  motion  to,  setting  down  for  hearing 29 

Dismissal  of  causes  continued,  if  not  reinstated 57 

District  courts: 

Always  open  for  certain  purposes 1 

To  establish  times  and  places  when  motions  may  be  made  and  dis- 
posed of  6 

Additional    rules  by 79 

District  judge  may  make,  direct,  and  award  process,  commissions,  orders, 

rules,  etc 1 

Documents  : 

Inspection  and  production  of 58 

Court  may  enforce  inspection  and  production  of 58 

Interrogatories  for  discovery  of,  when  to  be  filed 58 

Execution  or  genuineness  of,  call  for  admission  of 58 

Identified   but   not   set   forth   in  master's   report 61 

Production  of,  required  by  master .^ 62 

Previously  used  in  court  may  be  used  before  master 64 

Dwelling  house,  service  of  subpoena  by  leaving  copy  at 13 

Equity  docket: 

Clerk  to  keep   3 

Index    of 3 

Noting  of   order  in,  not  notice 4 

Day  of  return  of  master's  report  to  be  entered  in 66 

Equity  journal: 

Clerk  to  keep 3 

Index  of  3 

Equity,  suit  in: 

Action   at    law    erroneously    begun'  as — transfer 22 

Matters  ordinarily  detenninable  at  law  when  arising  in,  to  be  dis- 
posed of  therein 23 

Error  or  defect  in  proceedings,  court  to  disregard  when  not  affecting  sub- 
stantial   rights    19 

Evidence : 

Mere  statement  of,  to  be  omitted  from  bill. 25 

Admissibility  of,  to  be  passed  on  by  court 46 

Offered   and   excluded,   proceedings   on 46 

Affidavits  of  expert  witnesses  in  patent  and  trade-mark  cases,  when 

not  to  be  used  as . .                                                            48 


INDEX  TO  EQUITY  RULES.  1009 

Evidence:  B0]e 

Taken   before  examiners  to  b«  returned   U  eourt 49 

Taken  Before  examiners,  provisions  as  to 51 

Objections  to,  taken  before  examiner,  etc 51 

Court  or  judge  may  enforce  answers  to  interrogatories  and  production 

of   documents   containing 58 

Master  may  direct  mode  of  proving  matters  before  him 62 

Before  master  on  examination  to  be  taken  down 65 

How  to  be  stated  in  record 75 

Ex  parte,  cause  to  btf  proceeded  with  after  decree  pro  eonfesto 16 

Examination  to  be  identified  but  not  stated  in  master's  report 61 

Examiners: 

Evidence  taken  before— 

To  be  returned  to  eourt 49 

Provisions   as   to    51 

Not  to  decide  on  competency,  materiality,  or  relevancy  of  questions  51 

Attendance  of  witnesses  before 52 

Notice  of  taking  testimony  before,  etc.   53 

Cross-examination  of  witness  before 54 

Exceptions : 

For  insufficiency  of  answer  abolished S3 

To  evidence  offered  and  excluded,  provisions  as  to 46 

To  master's  report 66 

Costs  on   07 

Execution : 

Writ  of,  provisions  as  to 8 

Admission  of,  of  documents,  etc 53 

Executor   as   party    37 

Expert  witnesses,  testimony  of,  in  patent  and  trade- mark  eases 48 

Facts: 

Ultimate  statement  of,  upon  which  relief  asked,  to  be  stated  in  bill  25 

Insufficiency  of,  as  defense,  how  presented 29 

Material,  may  be  alleged  in  supplemental  pleading 34 

Not  to  be  stated  in  master's  report 61 

Fees  of  stenographer   50 

File  number,  each  suit  and  all  papers,  process,  etc.,  to  be  marked  with, 

and   noted    on   equity    docket 

Filing  of  deposition  deemed  publication 55 

Final  hearing,  points  of  law  may  be  disposed  of  before 29 

Final  process: 

Issue  and  return  of    

To  be  served  by  marshal,  deputy,  etc 15 

Manual — 64 


1010  APPENDIX. 

Rule 

Foreclosure  of  mortgages,  etc.,  decree  for  balance  due 10 

Form  of  accounts  before  master   63 

Form  of  decree    -. 71 

Former  depositions,  etc.,  may  be  used  before  master 64 

Forms : 

Technical,  of  pleadings  abrogated 18 

Alternative — prayer    for   specific   relief   may   be   in 25 

Genuineness  of  documents,  admission  of,  etc 58 

Guardian: 

As   party    37 

May  sue  for  infants 70 

Ad  litem,  may  be  appointed  by  court  or  judge,  etc 70 

Hearing: 

On  merits — making  and  directing  interlocutory  motions,  orders,  rules, 

etc.,  preparatory  to   1 

Of  causes,  notice  of  interlocutory  orders  for 6 

Final,  points  of  law  may  be  disposed  of  before 29 

On  exceptions  to  report  of  master 66 

Heir  as  party  to  suits  to  execute  trusts  of  will 41 

Holidays : 

Legal,  clerk's  office  not  open 2 

Computation  of  time    80 

Impertinence,   scandal,   exceptions   to   bills,   answers,    etc.,   for,   shall   not 

obtain    21 

Incompetents,  suits  by  or  against 70 

Indices  of  equity  docket,  order  book,  and  equity  journal,  clerk  to  keep  3 

Infants : 

Nothing  to  be  taken  against  as  confessed 30 

Nominal   parties   in   suits   not   against 40 

May  sue  by  guardian  or  by  prochein  ami 70 

Guardians  ad  litem  may  be  appointed  to  defend  suits  against 70 

Injunction : 

For  specific  performance,  provision  as  to 8 

Preliminary,   and   temporary  restraining   orders 73 

Pending   appeal    '. 74 

Insufficiency  of  fact,  defense  of,  how  presented 29 

Interlocutory  motions,  orders,  rules,  etc.,  making  and  directing 1 

Interrogatories : 

Written,  practice  as  to,  to  be  followed  in  case  of  refusal  of  witness 

before  master,  examiner,  etc 52 

When  to  be  filed    .  58 


INDEX  TO  EQUITY  BULKS.  1011 

Interrogatories:  Bale 

When  to  be  answered,   etc 58 

Court   may   enforce   answers   to 58 

To  be  answered  separately   and   fully,  in  writing,  under  oath,  and 

signed    58 

Objections  to,   provisions  as  to 58 

Copies  to  be  sent  by  clerk  to  solicitors  of  record 58 

Examination  of  accounting  party  before  master  OB 63 

Claimants  before  master  ezaminable  on it 

Intervention,  when  allowed  37 

Issue : 

Of    subpoena    12 

Cause  at,  upon  filing  of  answer,  except,  etc 31 

Joinder  of  causes  of  action    26 

.Joinder  of  parties,    provision    as    to 87 

Joint  and  several  demands 42 

Judge: 

District,  may  make,  direct,  and  award  process,  commissions,  orders, 

rules,    etc.    1 

In  chambers,  orders  by,  to  be  entered  in  order  book 3 

May  suspend,  alter,  or  rescind  motion  granted  as  of  course  by  clerk  5 

On  notice,  if  any,  may  make  interlocutory  orders,  etc 6 

Verification  of  pleadings  before 36 

Jurisdiction,  ground  on  which  depends  to  be  stated  in  bill 25 

Justice,  convenient  administration  of,  joinder  of  causes  of  action  to  pro- 
mote      26 

Land,  decree  for  conveyance  of,  attachment  in 8 

Law: 

Action  erroneously  begun  as  suit  in  equity — transfer 22 

Matters  ordinarily  detenu i  nable  at,  when  arising  in  suit  in  equity, 

to  be  disposed  of  therein 23 

Points  of,  may  be  disposed  of  before  final  hearing 29 

Letter,  call  for  admission  of  genuineness  of,  etc 58 

Loss,  immediate  and  irreparable,  to  be  shown  on  application  for  temporary 

restraining  order 73 

Lunatic,  nothing  to  be  taken  against  as  confessed SO 

Marshal,  deputy,  etc.,  to  serve  all  process,  except 15 

Master : 

Attendance  of  witnesses  before 52 

Reference  to,  exceptional  not   usual 59 

Proceedings   before    .-• '  60 

Duties  of    *6 

May  proceed  ex  parte  when 60 


1012  APPENDIX. 

Master:  Knle 

May  adjourn  examination,  etc.,   when..... 60 

To    proceed    with    reasonable    diligence 60 

Reports  of — documents  to  be  identified  but  not  set  forth 61 

Powers   of    i . .  62 

To    regulate    all   proceedings   before   him 62 

May  require  production  of  all  books,  papers,  etc 62 

Form   of  accounts   before 63 

Former  depositions,  etc.,  may  be  used  before 64 

Claimants  before,  examinable  by   him 65 

Appointment  and  compensation  of 68 

Entitled  to  attachment  for  his  compensation,  when 68 

Not  to  retain  report  as  security  for  compensation 68 

Pro  hoc  vice,  in  particular  cases,  may  be  appointed  by  court 68 

In  chancery,  standing,  may  be  appointed  by  the  court 68 

Master's  report: 

Return  of — exceptions — hearing    66 

Costs    on    exception    to 67 

Not  to  be  recited  in  decree  or  order 71 

Material  supplemental  matter  may  be  set  forth  in  amended  pleadings. ...  19 

Materiality  of  questions  not  to  be  decided  by  examiner 51 

Matter : 

Further  and  better  particulars  of,  in  any  pleading  may  be  ordered  20 

New  or  affirmative,  in  answer,  deemed  denied  by  plaintiff 31 

Matters  ordinarily  determinable  at  law,  when  arising  in  suit  in  equity, 

to    be    disposed    of   therein 23 

Merits,  hearing  on — making  and  directing  interlocutory  motions,  orders, 

rules,  etc.,  preparatory  to   1 

Mesne   process: 

Issuing  and  returning 1 

Subpoena  shall   constitute   proper 7 

To  be  served  by  marshal,  deputy,  etc 15 

Misjoinder,  defense  of,  how  presented 29 

Mistakes,  clerical,  correction  of,  in  orders  and  decrees .- 72 

Money,    payment   of,   final   process   to    execute   decree   for 8 

Mortgages,  foreclosure  of,  decree  for  balance  due 10 

Motions : 

Interlocutory,  making  and  directing  1 

When  may  be  made 1 

Etc.,  grantable  of  course,  received  and  disposed  of  by  clerk 2 

<Jrantable  of  course  by  clerk 5 

For  mesne  process  grantable  of  course  by  clerk 5 

And  applications  not  requiring  order  of  court  or  judge  grantable 


INDEX  TO  EQUITY  RULES.  1013 

Motions:  Bale 

Of  course  by  clerk 5 

Grantable  of  course  by  clerk  may  be  suspended,  etc.,  by  judge 5 

Requiring  notice  and  hearing,  times  and  places  for 6 

To   enlarge   time    for   filing  answer 17 

Will  not  be  granted  unless  payment  of  costs,  etc 17 

Te  strike  out,  to  test  sufficiency  of  answer 33 

Motion  day   6 

May  be  dispensed  with  by  senior  circuit  judge  6 

Motion  to  dismiss,  defenses  to  be  presented  in 29 

Names  of  plaintiff  and  defendant  to  be  stated  in  bill 25 

Nominal  parties   40 

Non  eat  inventus,  return  of,  issuance  of  writ  of  sequestration 8 

Nonjoinder,  defense  of,  how  presented 29 

Notary    public,    verification    of   pleadings    before 3'i 

Notice: 

Reasonable,  to  parties,  of  process,  commissions,  orders,  rules,  etc....  1 

Of   orders    4 

Order  without  prior,  to  be  mailed  by  clerk  to  party,  etc 4 

Of  interlocutory  orders,  etc 6 

Defendant  to  take,  of  certain  decrees 8 

Of    motion    to    dismiss 29 

Reasonable,  of  amendment   of   answer,   by   leave,   etc.    30 

Reasonable,  of  filing  supplemental  pleading 34 

To  be  given  to  parties  to  be  substituted 45 

Reasonable,  of  motion  to  enforce  answers,  etc,    58 

Of  taking  testimony  before  examiner,  etc 5.T 

To  parties  or  solicitors  of  proceedings  before  master 60 

No    preliminary    injunction   granted    without 73 

Oath: 

May  be  made  by  plaintiff  if  special  relief  asked 25 

Stockholder's  bill  to  be  verified  by   

Interrogatories   to  be   signed   under 

Petition  for  rehearing  to  be  verified  by 

Affirmation   in  lieu   of    78 

Objections: 

To  defect  of  parties   * 

Tardy,  to  defect  of  parties 44 

To  eridence  taken  before  examiner,  provisions  as  to 51 

To  be  noted  by  examiner,  etc 51 

Officers   before  whom    pleadings   verified 

Old   rules   abrogated    81 


1U14  APPENDIX. 

Omissions:  Rule 

In  orders  and  decrees  may  be  corrected  without  rehearing 72 

Of  portions  of  record  on  appeal \ 75 

Correction  of,  in   record   on   appeal 76 

Orders : 

When  maj  be  made 1 

Award  of,  by  judge  at  chambers,  etc 1 

Interlocutory,  making  and  directing 1 

Grantable  of  course,  received  and  disposed  of  by  clerk 2 

Filed  with  clerk  te  be  noted  in  equity  docket 3 

Of  court  to  be  entered  in  equity  journal 3 

Made  or  passed  by  clerk,  or  judge  in  chambers,  to  be  entered  in  order 

book    3 

Made  without  notice,  to  be  mailed  by  clerk 4 

Noting  of,  in  equity  docket  or  entered  in  order  book,  not  notice  to 

parties    4 

Interlocutory,  notice  of    6 

Process  to  issue  to  compel  obedience  to 7 

Mandatory,    for   specific    performance,    provision    as    to 8 

For  delivery  of  possession,  writ  of  assistance  on  refusal  to  obey....  9 

In  favor  of  person  not  party,  how  enforced 11 

Against   person   not   party,   how   enforced 1] 

That  bill  be  taken  pro  confesso  on  default 16 

Shall    not    recite    pleadings 71 

Correction  of  clerical  mistakes  in 72 

Temporary  restraining,  and  preliminary  injunctions 73 

Justice  or  judge  may  make  order  suspending,  etc.,  injunction  pend- 
ing appeal 74 

Order  book: 

Clerk  to  keep 3 

To  contain  all  orders  made  or  passed  by  judge  in  chambers  or  by  clerk  3 

Index  of,  clerk  to  keep 3 

Entry  of  order  in,  not  notice 4 

Papers  and  orders  filed  with  clerk,  etc.,  to  be  noted  in  equity  docket....  3 

Papers,  production  of,  required  by  master 62 

Parties : 

Noting  or  entry  of  order  not  notice  to 4 

Persons  not  made   25 

Generally — intervention    37 

Joinder  of 37 

Proper,  absence  of  persons  who   would  be 39 

Nominal,    appearance   of    40 

In  cases  of  joint  and  several  demands 42 

Defect  of,  resisting  objection 43 


INDEX  TO  EQU1TK  BULKS.  1015 

Parties:  Rule 

Defect  of,  tardy    objection,   proceedings   on 44 

To  give  notice  of  taking  of  testimony  before  examiner,  etc 53 

Clerk  to  send  copies  of  interrogatories  to,  if  there  be  no  record  solicitor  58 

Notice  to,  of  proceedings  before  master 60 

Failing  to   appear  before   master 60 

May  be  examined  on  oath  by  master 62 

Accounting  before  master,  how  to  bring  in  accounts 63 

To  examine  accounting  party  viva  voce  or  upon  interrogatory 63 

Time  for  filing  exceptions  to  master's  report  by 66 

To  yerify  petition  for  rehearing  by  oath 69 

To  be  given  notice  of  preliminary  injunctions,  etc 73 

Party: 

When  order  made  in  absence  of,  clerk  to  mail  copy 4 

Heir  as,  to  execute  trusts  of  will 41 

Death  of,   revivor    45 

Procuring  reference  to  master,  payment  of  costs  by 59 

Patent  cases,  testimony  of  expert  witnesses  in 48 

Persons  not  parties,  process  on  behalf  of  and  against 11 

Person  appointed  to  serve  process  to  make  affidavit  thereof 15 

Persons  not  made  parties  to  hill 25 

Person,  non  compos,  nothing  to  be  taken  against  as  confessed 30 

Persons: 

Joining    as    parties    37 

Who  would  be  proper  parties,  absence  of 39 

Person  making  claim  before  master  examinable  by  him 65 

Petition    for    rehearing    69 

Plaintiff: 

Entitled  to  subpoena  as  of  course  when  bill  filed 12 

Time  within  which  to  take  deposition  for 47 

Plea  in  bar,  defenses  formerly  presentable  by,  to  be  made  in  answer....  29 

Pleadings: 

Filing  of   1 

Technical   forms   abrogated 18 

Court  may  permit  any,  to  be  amended 19 

Further  and  particular  statement  in,  may  be  required 20 

Further  and  better    particulars    of    matters   stated    in    any    may    be 

ordered    20 

Alteration  in,  on  transfer  of  action  at  law  erroneously  begun  as  suit 

in  equity    

To  be  signed  by  solicitors 24 

When  bill  may  be  amended  as  of  course 

Demurrers  and   pleas  abolished C'.» 


1016  APPENDIX. 

Pleadings:  Rule 

Supplemental,  permitted  when    34 

Officers  before  whom  verified 36 

Filing,  or  amendment  of,  on  substitution  of  parties 45 

Pleas    abolished    29 

Possession,    delivery   of,   writ   of   assistance: 

To  enforce  7 

On  refusal   to  obey   decree   for 9 

Powers  of  master    62 

Practice,  additional  rules  for,  by  district  court 79 

Precipe,  filing  indicating  portions  of  record  on  appeal 75 

Prayer  for  special  relief  to  be  stated  in  bill 25 

Precedence  given  to  hearing  in  cases  of  temporary  restraining  orders ....  73 

Prejudice,  unless  material,  will  result  appellate  court  not  to  reverse  decree  46 

Preliminary  injunctions  and  temporary  restraining  orders 73 

Preparation  and  reduction  of  record  on  appeal. 75 

Cost's — corrections    of    omissions 76 

Pro  oonfesso: 

Taking  bills,  motion  for,  grantable  of  course  by  clerk 5 

Bill  may  be  taken  when  answer  not  filed,  etc 12 

Decree — 

On  default  in  answer 16 

To  be  followed  by  final  decree 17 

Entered  if  answer  not  filed 29 

Proceedings  before  master: 

Speeding  of   60 

Powers   in    62 

Process : 

Mesne   and   final,   issuing   and   returning 1 

Award  of,  by  judge  at  chambers,  etc 1 

Issuing  and  return  of   1 

Issued  and  returns  thereon  to  be  noted  in  equity  docket 3 

For  taking  bills  pro  confesso  grantable  to  course  by  clerk 5 

Mesne  or  final,  to  enforce  and  execute  decrees  grantable  of  course  by 

clerk    ' 5 

Mesne   and  final,   defined 7 

In  behalf  of  and  against  persons  not  parties 11 

By   whom  served    15 

Mesne  and  final  to  be  served  by  marshal,  deputy,  etc 15 

May  be  served  by  person  appointed  therefor , 15 

Court  may  permit  any  process  to  be  amended 19 

Additional  rules  as  to,  by  district  court 79 

Prochein  ami  may  sue  for  infants 70 

Production  of  books,  papers,  etc.,  may  be  required  by  master 62 


INDEX  TO  EQUITY  RULES.  1017 

Bale 

Publication  of  deposition,  when  filed 55 

Questions,  competency,  materiality,  or  relevancy  of,  not  to  be  decided  by 

examiner 51 

Record: 

Court  may  permit  any  record  to  be  amended 19 

How  evidence  to  be  stated  in   75 

Appellant's  statement  as  to  record  on  appeal  to  become  part  of....  75 

On  appeal — 

Indicating  portions  of 75 

Additional  portions,  how  indicated  75 

Seduction  and  preparation 75 

Difference   as   to    75 

Reduction    and    preparations — costs — correction   of   omission....  76 

Agreed  statement   77 

Reduction  and  preparation  of  record  on  appeal 75 

Costs — corrections    of    omissions    76 

Reference  to  master — exceptional,  not  usual  59 

Rehearing: 

Petition  for,  provisions  as  to   69 

Correction  of  clerical  mistakes  in  orders  and  decrees  without 72 

Reinstatement  of  causes,  continued 57 

Relevancy  of  questions  not  to  be  decided  by  examiner,  etc 51 

Relief; 

Special,  prayer  for,  to  be  stated  in  bill 25 

To  be  verified  by  oath  of  plaintiff,  etc. 25 

Reply: 

When   required — when   cause   at   issue 81 

None  required  unless  answer  asserts  set-off  or  counterclaim SI 

Report: 

Master's—" 

To  court 60 

Documents  to  be  identified  but  not  set  forth 61 

Of  master — 

Exceptions,  hearing  66 

Costs  on  exceptions  to 67 

Not  to  be  recited  in  decree  or  order 71 

Representatives  of  class  may  sue  or  defend 88 

Residence  and  citizenship  of  each  party  to  be  stated  in  bill 25 

Restraining  orders,  temporary,  and  preliminary  injunctions 73 

Returns  on  process  to  be  entered  on  equity  docket 3 


1018  APPENDIX. 

Bet  urn:  Rule 

Of  subpoena  not  executed 14 

Of  master's  report — exceptions — hearing  66 

Eevivor: 

Bills  of,  what  necessary  in 35 

On  death  of  party 45 

Eights,  substantial,  court  to   disregard  error  or  defect  in  proceedings 

which  does  not  affect 19 

Rules: 

When  they  may  be  awarded 1 

Interlocutory,  making  and  directing .. .  1 

Award  of,  by  judge  at  chambers,  etc 1 

Grantable  of  course,  received  and  disposed  of  by  clerk 2 

Additional,  by  district  court 79 

When  effective 81 

Old,  abrogated 81 

Sale,  amount  due  above  proceeds  of  decree  for 10 

Scandal  and  impertinence  21 

Scandalous  matter,  signature  of  solicitor,  certificate  that  none  inserted 

in  pleading 24 

Sequestration,  writ  of: 

Proper  process  if  defendant  not  found. _. 7 

Against  estate  of  delinquent : 8 

Person  other  than  disobedient  party  to  comply  with  mandatory  order 

for  specific   performance : . .  8 

Service  of  subpoena  by  delivery  of  copy,  etc 13 

Set-off  to  be  stated  in  answer 30 

Set-off  to  be  replied  to   31 

Signatures,  pleadings  to  be  signed  by  solicitors  of  record 24 

Solicitors: 

Noting  or  entry  of  order  not  notice  to 4 

Of  record — 

To  sign  every  pleading 24 

To  be  furnished  copy  of  amended  bill 28 

Clerk  to  send  copies  of  interrogatories  to ; 58 

Notice  to,  of  proceedings  before  master 60 

Offending,  imposition  of  costs  on 76 

To  file  precipe  indicating  portions  of  record  on  appeal 75 

Specific  performance,  by  some  other  person  than  disobedient  party....  8 

Standing  masters  in  chancery,  courts  may  appoint 68 

Statement: 

Further  and  particular  in  pleading  may  be  required 20 

Agreed  as  to  record  on  appeal 77 


INDEX  TO  EQUITY  RULJB.  1019 

Bole 

Stenographer — Appointment — fees   50 

Stockholder's  bill 27 

Subpoena: 

Shall  constitute  proper  mesne  procesi,  etc 7 

Issue  of,  time  for  answer 12 

To  issue  when  bill  filed  and  not  before 12 

To  contain  names  of  parties 12 

When  returnable 12 

Memorandum  at  bottom  thereof 12 

Joint,  against  more  than  one  defendant 12 

Separately,  for  each  defendant  when  against  more  than  one 12 

Manner  of  serving 13 

Not  executed,  provision  as  to*. 14 

Alias    14 

Substitution   of  proper  parties   by   revivor 45 

Sufficiency  of  defense,  how  tested 33 

Baits: 

Papers  filed,  process  issued,  etc.,  to  be  noted  on  equity  docket....  3 

To  execute  trusts  of  will — heir  as  party 41 

By  or  against  incompetents 70 

Supplemental  pleading,  when  may  be  filed 34 

Supreme  Court,  if  appeal  lies  to,  rehearing  not  granted  after  term....  69 

Sundays: 

Clerk's  office  not  open 2 

And  holidays— computation  of  time 80 

Temporary  restraining  orders  and  preliminary  injunctions 73 

Term: 

Awarding    process,    commissions,   orders,   roles,   etc.,   by   judge   at 

chambers,  etc.,  in   1 

Orders,  decrees,  etc.,  of  court  to  be  entered  in  equity  journal 3 

Rehearing  not  granted  after,  if  appeal  lies 09 

Testimony: 

Usually  to  be  taken  in  open  court  at  trial 46 

Of  expert  witnesses  in  patent  and  trade-mark  cases 48 

May  be  taken  down  by  stenographer 50 

To  be  signed  by  witness 51 

Of  witnesses  before  examiner  to  be  read  to  him 51 

Contempt  of  court  for  refusal  of  witness  to  give  testimony  before 

commissioner,  examiner,  etc 52 

Notice  of  taking  before  master  or  examiner 53 

No  further  by  deposition  to  be  taken  after  case  goes  on  trial  calen- 
dar, except,  etc 56 

How  stated  in  record  on  appeal -  T5 


1020  APPENDIX. 

Rule 

Testing  sufficiency  of  defense 33 

Time: 

Enlargement  of — 

For  full  compliance  with  decree   8 

To  file  answer  16 

On  expiration  of,  for  depositions,  case  on  trial  calendar 56 

Computation  of — Sundays  and  holidays 80 

Trade-mark  cases,  testimony  of  expert  witnesses  in 4s 

Transcript: 

Cost  of,  to  be  advanced  by  party  ordering 50 

Of  evidence  before  examiner  not  to  include  argument 51 

On  appeal — 

Indicating  portions  of .*. 75 

Supplemental,  correction  of,  omissions  'by 76 

Transfer  of  action  at  law  erroneously  begun  as  suit  in  equity 22 

Trial: 

Testimony  usually  taken  in  open   court,  rulings  on  objections  to 

evidence    46 

Calendar,  on  expiration  of  time  for  depositions  case  goes  on 56 

Trials,  separate — court  may  order  separate  trials  of  joint  actions 26 

Trustee  as  party 37 

Vacation,  awarding  process,  commissions,  orders,  rules,  etc.,  by  judge  at 

chambers  in 1 

Value,  averments  in  bill  other  than  of,  if  not  denied,  deemed  confessed. .  30 

Verification: 

Bill  to  be  verified  by  oath  if  special  relief  asked 25 

Of  pleadings,  officers  before  whom  taken 36 

Petition  for  rehearing  to  be  verified  by  oath,  etc 6^» 

Vwa  voce,  master  may  examine  persons  before  him 65 

Vouchers,  production  of,  required  by  master 62 

Will,   execution   of   trusts   of — heir  as   party 41 

Witnesses : 

Testimony  usually  to  be  taken  in  open  court 46 

Depositions  of,  may  be  taken  when 47. 

Testimony  of  expert  in  patent  and  trade-mark  cases 48 

Before  examiners,  etc.,  cross-examination  of,  etc 49 

Testimony  of — 

To  be  read    to    51 

To  be  signed  by  51 

Refusing  to  sign  testimony 50 

Expense  of  taking  deposition  of,  t'o  be  adA-anced  by  party  calling 50 

Attendance  of  before  commissioner,  etc. 52 


INDEX  TO  EQUITY  RULES.  1021 

Witnesses:  Rule 

Refusing  to  appear  before  commissioner,  master,  or  examiner 52 

Compensation  of,  for  attendance  before  commissioner,  master,  or 

examiner     52 

May  be  examined  orally  before  court,  or  cross-examined  before  ex- 
aminer, etc.,  when  no  notice  of  deposition  given 54 

Testimony  of,  by  deposition,  after  case  goes  on  trial  calendar 56 

May  be  examined  on  oath   by   master 62 

Testimony  of,  how  stated  in  record,  on  appeal 75 

Writing,  call  for  admission  of  execution  or  genuineness  of 58 

Writings,  production  of  required  bj  master 68 


TABLES  OP  STATUTES,  CODE  SECTIONS, 
RULES,  AND  CONSTITUTIONAL  PROVI- 
SIONS QUOTED  OR  CITED  HEREIN. 


Page 

a.  Revised  Statutes  of  the  United  States 1025 

b.  Judicial  Code  Sections 1029 

c.  Criminal   Code   Sections 1031 

d.  Chronological  Table  of  Acts  of  Congress  Other  Than  Revised  Statutes 

and  Code  Sections 1032 

e.  Supreme    Court   Rules 1034 

f.  Circuit  Courts  of  Appeals  Rules 1034 

g.  Equity  Rules 1035 

h.  Constitutional   Provisions 1036 

i.  Amendments  to  the  United  States  Constitution 1036 

NOTE. — In  the  left-hand  column  is  the  number  of  the  statute,  rule  or 
constitutional  provision  quoted  or  referred  to  in  this  Manual. 

In  the  right-hand  column  is  the  section  number  of  the  text  where  the 
statute,  rule  or  provision  is  quoted  or  referred  to. 

Unless  otherwise  indicated,  the  statute,  rule  or  provision  is  quoted  in 
the  section  of  the  Manual  referred  to.  The  letter  "r"  following  the  statute 
or  rule  number  indicates:  reference,  not  quotation. 

(1023) 


TABLE  OF  HE  VISED  STATUTES. 


TABLE  OF  REVISED  STATUTES. 


The  statute  is  quoted  unless  the  letter  "r"  appears. 

A  number  of  Revised  Statutes  section  numbers  are  included  in  this 
list  where  the  section  has  been  re-enacted  or  superseded  by  Judicial  Code 
sections.  Such  Revised  Statute  section  numbers  are  in  parentheses  and 
are  followed  by  the  Judicial  Code  section  number  re-enacting  or  superseding 
To  find  the  place  in  the  text  where  such  Judicial  Code  sections  are  quoted, 
see  table  of  Judicial  Code  sections,  post,  page  1029. 


Our  Sec. 

R.  S.  Sec. 

Our  See. 

R.  8.  See. 

Onr  8e« 

1701 

769 

33 

(820)  2S6  Jud. 

Code 

359 

771  pt. 

1361 

(820)  288  " 

" 

354 

776 

29  r. 

1  )  283  " 

" 

356 

779 

29  r. 

(822)  852  " 

• 

855 

780 

30 

(822)  276  " 

u 

33  r. 

782 

30  r,  29  r. 

(822)  278  « 

M 

33  r. 

783 

29  r. 

823 

401 

83  r. 

784  . 

29  r. 

MJ4 

409 

458  r. 

785 

29  r. 

825 

411 

581 

786 

29  r. 

826 

411 

682  r. 

787 

620  r. 

827 

411 

459  r. 

787 

453  r. 

*>28 

412 

594 

787 

524  r. 

829 

413 

1562 

788 

453  r. 

837 

411 

459 

788 

520  r. 

838 

1704 

594 

788 

524  r. 

840 

412 

596 

793 

33r,  29  r. 

848 

418 

597 

794 

28  r. 

848 

849 

1562 

'795 

28  r. 

849 

419 

230 

796 

28  r. 

851 

422 

270 

(8t)0)  275  Jnd. 

Code 

425 

620  r. 

('SOI)  275  " 

a 

853 

427 

521  r. 

(802)  277  " 

a 

854 

428 

1202 

(803)  279  " 

a 

S55 

426 

863 

(804)  280  " 

" 

857 

408 

460  r. 

(805)  281  " 

" 

858 

57  r. 

571  r. 

(80(1)  275  " 

•« 

858  pt. 

962 

270  r. 

(80S)  282  " 

ii 

858 

380 

1332 

(809)  283  " 

M 

658 

460  r. 

1333 

(810)  284  " 

II 

858 

270  r. 

1334 

(811)285  " 

1 

300 

837 

1335 

(812)  286  " 

4 

861 

580  r. 

1336 

(813)  275  " 

861 

270 

1337 

(S14)  276  " 

Mi  1 

1338 

f815)  276  " 

861 

- 

1339 

'816)  276  " 

862  pt. 

1340 
1341 

(817)  275  " 
(817)  276  " 

863 
863-870 

880  r. 

1342 

(819)  287  " 

863 

1040  r. 

83 

Manual — 85 


1026 


APPENDIX. 


R.  S.  Sec. 

Our  Sec. 

R.  S.  Sec. 

863 

1041  r. 

886  pt. 

863 

383,  460  r. 

886  pt. 

863  pt. 

378 

887 

863-870 

370 

888 

863 

671  r. 

889 

863  pt. 

377 

890 

863  pt. 

375 

891 

863 

376  r. 

892 

863 

372  r. 

893 

863 

1020  r. 

894 

864 

383  r. 

895 

864 

377  r. 

896 

864 

379 

897 

865  pt. 

377 

898 

865 

383  r. 

899 

865 

1020  r. 

900 

865 

1040  r. 

901 

865 

1041  r. 

902 

865 

671  r. 

903 

865  pt. 

375 

904 

865 

372  r. 

905 

866 

372  r. 

905 

866 

384  r. 

906 

866 

372  r. 

907 

866 

1041  r. 

908 

866 

1020r. 

909 

866 

671  r. 

910 

866 

460  r. 

911 

866 

580  r. 

911 

867 

388  r. 

911 

8617 

1041 

911 

867 

1040  r. 

912 

867 

1020  r. 

912 

867  r. 

671  r. 

912 

867 

372  r. 

913 

868 

386  r: 

913 

868 

385 

913 

869 

387 

914 

869 

385  r. 

914 

869 

460  r. 

914  pt. 

870 

385  r. 

914 

870 

460  r. 

914 

874 

420 

914 

875 

393 

914  r. 

876 

343 

914 

876 

460 

914 

877 

460  r. 

914 

877 

344 

914 

878  pt. 

405 

915 

878 

345 

915 

879 

340 

915 

880 

331 

915 

881 

342 

915 

882 

286 

916 

883 

287 

916 

884 

288 

916 

885 

289 

916 

Our  Sec. 

R.  S.  Sec. 

Our  Se<\ 

290 

916 

621  r. 

291 

917 

8r. 

293 

918 

470 

294 

918 

461  r. 

295 

918 

462  r. 

296 

918 

454  r. 

297 

918 

8r. 

300 

918   F.  S.  A. 

57  r. 

301 

918 

6'22  r. 

302 

918 

620  r. 

277 

918     " 

546  r, 

304 

918 

540  r, 

305 

918      ' 

450 

306 

918'  pt. 

542 

280 

919      ' 

1703 

281 

920     ' 

457  r. 

282 

920      ' 

570 

283 

921 

407 

284 

922      ' 

799 

285 

923 

1706 

270 

924 

495 

274 

925 

496 

275 

926 

497 

276 

927 

498 

271 

928 

499 

308 

929 

500 

310 

930 

501 

793  r. 

931 

502 

520  r. 

932 

503 

522 

933 

452  r. 

453  r. 

933 

494  r. 

520  r. 

934 

1708 

453  r. 

935 

510 

522 

936 

511 

799 

937 

512 

8r. 

938 

1707 

58  r. 

939 

1712 

450 

942 

1273 

7r. 

943 

1274 

622 

944 

1275 

620 

945 

1262  r. 

611  r. 

945 

35  r. 

560  r. 

946 

1276 

470  r. 

947 

1277 

520  r. 

948 

520  r. 

462  r. 

948 

452  r. 

525  r. 

948 

523 

541 

948 

455i. 

480 

948  r. 

489 

452  r. 

948 

487 

504  r. 

949 

1702 

522  r. 

951 

1709 

57  r. 

952 

1710 

631 

953 

615 

57  r. 

953 

597  r. 

463  r. 

953 

596  T. 

452  r. 

954 

760  r. 

TABLE  OP  REVISED  STATUTES. 


R.  S.  Seo. 
954 
954 

Our  Ser. 
544  r 
629 

R.  S.  Seo. 
976 

977 

Our  8w 
436 

407 

R.  8.  Seo. 
1011 
1013 

Our  Sec. 
1686 
1674 

954 

453  r. 

978 

407 

1014 

1260 

954 

452 

979 

432 

1015 

35  r. 

954 

620  r. 

980 

411 

1015 

1263 

954 

612  r. 

981 

423 

1016 

35  r. 

954 

646  r. 

982 

410 

1018 

1264 

954 

540  r. 

983 

402 

1017 

1265 

954 

520  r. 

984 

403 

1018 

1266 

954  pt 

629 

985 

463  r. 

1019 

1267 

954 

462  r. 

985 

635 

1020 

1268 

954 

455  r. 

985 

621  r. 

1021 

1224 

954 

523 

986  ' 

463  r. 

1022 

1360 

955 

561 

986 

635 

1023 

1212 

955 

456  r. 

986 

621  r. 

1024 

1243 

955 

560  r. 

987 

633 

1025 

1244 

956 

456  r. 

987 

463  r. 

1026 

1245 

956 

562 

987 

621  r. 

1027 

1271 

956 

560  r. 

988 

634 

1028 

1269 

957 

563 

988 

463  r. 

1029 

1270 

957 

456  r. 

988 

621  r. 

1030 

1272 

957 

560  r. 

989 

621  r. 

1031 

1367 

958 

564 

989 

632 

1032 

186* 

958 

456  r. 

989 

463  r. 

1033 

1363 

958 

560  r. 

990 

463  r. 

1034 

1364 

959 

565 

990 

621  r. 

1035 

138t) 

959 

560  r. 

990 

636 

1036 

1381 

959 

456  r. 

990 

57  r. 

1041 

1384 

960 

456  r. 

991 

(537 

1042 

1385 

96J 

560  r. 

991 

57  r. 

1042 

35  r. 

960 

566 

991 

463  r. 

1043 

231 

961 

620  r. 

991 

621  r. 

1044 

2.12 

961 

542 

993 

644 

1045 

233 

961 

540  r. 

993 

463  r. 

1046 

234 

962 

620  r. 

993 

57  r. 

1047 

238 

962 

624 

993 

621  r. 

(1049)  136  Jud. 

Code 

963 

623 

993  last  pt. 

429 

(1050)  137 

u 

963 

620  r. 

994  r. 

463 

(1051)  127  " 

« 

964 

1711 

994 

642 

(1052)  138  " 

u 

965 

623 

994 

«21r. 

(1053)  139  " 

m 

965 

620  r. 

995 

1713 

nnr.n  140  •• 

u 

966  r.  4  F.  S 

A.  604,  462 

996 

1714 

(1055)  141  " 

« 

966 

623 

997 

1661 

(1056)  142  " 

M 

966 

57  r. 

998 

1668 

(1057)  143  " 

M 

966 

620  r. 

998 

1663 

(1057)  187  " 

M 

967  4F.S. 

A.606  627 

999 

1663 

(1058)  144  " 

II 

967  r. 

4G2 

999 

1600 

(10:59)  145  " 

II 

967 

620  r. 

1000 

1664 

(1059)  162  " 

II 

967 

57  r. 

1001 

1665 

(1060)  147  " 

M 

968 

407 

1003 

1609 

i  P;  " 

II 

969 

430 

1003 

1656 

(1062)  147  " 

II 

970 

431 

1004 

1660 

(1063)  148  " 

M 

971 

433 

1005 

1659 

(1064)  149  " 

il 

972 

437 

1007 

1666 

(1065)  150  " 

ii 

973 

438 

1010 

1687 

(1066)  ir,3  " 

" 

974 

434 

1011 

459  r. 

(1067)  154  " 

11 

975 

435 

1011 

594  r. 

(1068)  155  " 

II 

1028 


APPENDIX. 


R.  S.  Sec. 

Our  Sec. 

R.  S.  Sec. 

(1069)  156  Jud. 

Code 

3470 

(1070)  157  " 

" 

3470 

(1071)  158  " 

" 

3470 

(1072)  159  " 

" 

3471 

(1073)  160  " 

u 

3471 

(1074)  161  " 

u 

3471 

(1075)  163  " 

u 

3472 

(1076)  164  " 

II 

3472 

(1077)  165  " 

u 

3472 

(1078)  186  " 

II 

3494 

(1079) 

3636 

(1080)  166  " 

• 

3637 

(1081)  167   ' 

II 

3921 

(1082)  168   « 

II 

?990 

(1083)  169   ' 

II 

3991 

(1084)  170   ' 

II 

4069 

(1085)  171   • 

II 

4070 

(1086)  172   ' 

II 

4071-78 

(1087)  174  " 

II 

4072 

(1088)  175  " 

11 

4073 

1089  r. 

1439 

4074 

(1091)  177  Jud. 

Code 

4074 

(1092)  178  " 

" 

4079  r. 

(1093)  179  " 

" 

4079 

1778        3 

5  r.  574 

4080 

1981  pt. 

249 

4080 

19S2r. 

35 

4081 

1089 

1439  r. 

4081 

1986  pt. 

414 

4546 

1994  r. 

148 

4651 

2469 

297 

4906 

2470 

297 

4906  r. 

3066 

1705 

4907 

3224 

1118 

4908  r. 

3227 

246 

4908 

3228 

244 

4920 

3462 

35  r. 

Our  Sec. 

R,  R.  S*c. 

Our  Sec. 

463  r. 

4921  pt. 

250 

643 

4922 

438 

621  r. 

4968 

241 

638 

5237 

1116 

621  r. 

5242 

1117 

463  r. 

5242  pt. 

480 

621  r. 

5242 

452 

463  r. 

5261 

1432  r. 

639 

5270  1st  pt. 

1300 

242 

5270  pt. 

1301 

1119 

5270  last  pt. 

1308 

1120 

527  Opt. 

1302 

457  r. 

5270  pt. 

1303 

1716 

5270  pt. 

1304 

1717 

5270 

35  r. 

99 

5271 

1307 

100 

5272  1st.  pt. 

1308 

394 

5272  last  pt. 

1309 

395 

5272 

35  r. 

346 

5273 

1310 

348 

5274 

1311 

421 

5275 

131?. 

106 

5276 

1313 

108 

5277 

1314 

107 

5278 

1315 

109 

5279 

1316 

108 

5292 

1400 

110 

5293 

1401 

35  r. 

5294 

1402 

424 

5295 

334 

351 

5296 

1385 

460 

5396 

1240 

353 

5397  . 

1241 

460 

5542 

1386 

352 

5546 

1387 

1052 

5549 

1389 

TABLE  OF  JUDICIAL  CODE  ACTIONS. 


1029 


TABLE  OF  JUDICIAL  CODE  SECTIONS. 


The  letter  "r"  means  the  section  of  the  text  refers  or  cites  the  Judicial 
Code  section,  otherwise  the  same  is  quoted  in  full  or  part.  If  in  part, 
the  abbreviation  "pt."  is  used.  Where  the  Judicial  Code  section  is  not 
quoted  in  our  text,  it  is  nevertheless  set  out  in  full  and  annotated  in  the 
Appendix,  referred  to  as  "App." 


Jud.  Code 

Our  Sec.     Jud.  Code      Our  Sec. 

Jnd.  Code 

Our  SM. 

1 

20r. 

34 

190r,  206. 

74 

App. 

2 

App. 

35 

213. 

75 

3 

28r. 

36 

216. 

76 

4 

28r. 

37 

160,  190r,  204, 

77 

5 

32r. 

215,  471,  573. 

78 

6 

54r. 

33 

2l7. 

79 

7 

Sir. 

39 

214. 

80 

8 

Sir,  456,  560. 

40 

75,  1206. 

81 

9 

52r,  53r. 

41 

75,  1206r. 

82 

10 

Sir. 

42 

75,  1206r. 

83 

11 

Sir. 

43 

76,  1206r. 

84 

12 

Sir,  456,  560. 

44 

77. 

85 

13 

22r. 

45 

76,  1206r. 

86 

14 

22r. 

46 

78,  1206r. 

87 

15 

22r. 

47 

79,  1206r. 

88 

16 

22r. 

48 

71. 

89 

17 

22r. 

49 

73. 

90 

18 

23r,  24r. 

50 

74,  451r. 

91 

19 

26r. 

51 

60r,  61,  127r,  483, 

92 

20 

25r. 

158. 

93 

21 

25r. 

52 

60r,  62. 

94 

22 

51r,  456,  560 

53 

60r,  63. 

95 

23 

21r. 

54 

60r,  64. 

96 

24 

7r,  90,  91r,  93r, 

55 

60r,  65,  451. 

97 

94,  97,  101, 

56 

60,  67. 

98 

121,  123,  125, 

57 

66.   453,   483, 

99 

128r,  147,  170, 

520,  525,  526. 

100 

171,  173,  451, 

58 

68. 

101 

691,  1200. 

59 

69. 

102 

25 

90r,  102,  104. 

60 

70,   462.   490, 

103 

26 

90r,  105. 

620,  628,  1144, 

104 

27 

90r,  106. 

1147. 

105 

28 

90r,  126,  171, 

61 

35r. 

106 

190,  191,  192, 

62 

54r. 

107 

193,  194,  200, 

63 

54r. 

108 

201,  202,  203, 

64 

90r,  110,  111. 

109 

204. 

65 

1081. 

110 

29 

190r,  197,  198, 

66 

121,  1083. 

111 

199,  195. 

67 

32. 

112 

30 

93r,  170.  172 

68 

27r,  1080. 

113 

190r,  205. 

69 

App. 

114 

31 
32 

121,  190r,  207. 

208. 

70 

71 

M 
II 

115 
116 

1470. 

33 

209,  210,  211 

72 

II 

117 

1471. 

212. 

73 

II 

118 

147L 

1030 


APPENDIX. 


Jud.  Code 

Our  Sac. 

Jud.  Code 

Our  Sec.     Jud.  Code 

Our  Sec. 

119 

1471. 

176 

143  8r. 

240 

1501r,   1677, 

120 

1471. 

177 

1437r. 

1683r. 

121 

1471. 

178 

1439T. 

241 

1559,  1655. 

122 

1473. 

179 

1439r. 

242 

1560. 

123 

1471. 

180 

1432r. 

243 

1560. 

124 

1471. 

181 

1440r. 

244 

App. 

125 

1471. 

182 

1440r. 

246 

1680,  1561r. 

126 

1472. 

183 

1439r. 

247 

1679,  1561r, 

128 

1383,  ISOOr,  1501. 

184 

1434r. 

1505r. 

129 

1502,  1654. 

185 

1434r. 

248 

1681,  1561r.' 

130 

1503. 

186 

1435r. 

249 

1561r. 

131 

1504. 

187 

1439r. 

250 

1682r,  1561r, 

132 

1510,  1653. 

188 

1452r. 

251 

1683. 

134 

1505,  1684. 

189 

1453r. 

252 

1561r. 

135 

1506. 

190 

1452r. 

255 

1532. 

136 

1430r. 

191 

1452r. 

256 

90r,  90,  91r,  92, 

137 

1430r. 

192 

1452r. 

93r.  1200. 

138 

1431r. 

193 

1452,r! 

261 

1113. 

139 

143  Or. 

194 

1452r. 

262 

1114,  453r,  1100, 

140 

1430r. 

195 

1454r. 

1562,  1331. 

141 

1430r. 

196 

1454r. 

263 

1102. 

142 

1430r. 

197 

1454r. 

264 

1101. 

143 

1439r. 

198 

1455r. 

265 

1108'. 

144 

143  Or. 

19'9 

145  6r. 

266 

1110,  1111,  1109, 

145 

1432r. 

215 

1530. 

359. 

146 

1439r. 

216 

1530. 

267 

863. 

147 

143  7r. 

217 

1530. 

268 

347,  1115,  460. 

148 

1432r. 

218 

1530. 

269 

462,  614. 

149 

1432r. 

219 

1530. 

270 

35r,  1262. 

150 

1439r. 

220 

28r  1530. 

271 

105,  107,  90r. 

151 

1432r. 

221 

1530. 

35r. 

152 

1438T. 

224 

1530. 

274a 

472. 

153 

1432r. 

2.25 

1531r. 

274b 

540r,  545. 

154 

1432r. 

226 

1531r. 

274c 

161. 

155 

143  2r. 

227 

1531r. 

275 

584. 

156 

243,  1433r. 

228 

153  Ir. 

276 

589. 

157 

1434r. 

229 

1531r. 

277 

588. 

158 

1434r. 

2.30 

1533. 

278 

585. 

159 

1434r. 

231 

1533. 

279 

590. 

160 

1434r. 

232 

1533. 

280 

591. 

161 

1434r. 

233 

1534. 

281 

592. 

162 

1432r. 

234 

1534,  1562r. 

282 

1221. 

163 

1434r. 

235 

1534. 

283 

1222. 

164 

1434r. 

237 

131r,  1561r, 

284 

1220. 

165 

1434T. 

1600r,  1600, 

285 

1223. 

166 

1434r. 

1601,   1608. 

286 

587  r. 

167 

1434r. 

238 

1553r,    1501r. 

287 

593,  1366. 

168 

1434r. 

1383    1554r. 

288 

1368. 

169 

1435r. 

1555r,  1558r, 

291 

406r,  459r,  594. 

170 

1434r. 

1551. 

292 

1700. 

171 

1438r. 

239 

1683r,     1677, 

293 

1700. 

172 

1560r,  1434r. 

1678,    1508, 

294 

1700. 

173 

1434r. 

1501r,  1684r, 

295 

1700. 

174 

1436r. 

1559r. 

297 

1691r. 

175 

1436r. 

TABLE  OF  CRIMINAL  CUUt  SECTIONS. 


1U31 


TABLE  OF  CRIMINAL  CODE  SECTIONS. 


r.  Code      Oar  Sec. 

44  83. 

125  332. 

126  332r. 
272  1201. 
281  236  pt. 


Cr.  Code      Our  Sec. 

289  1203,  1204r. 

309  75,  1206r. 

310  75,  1201,  1206r. 

311  1201. 
323  1403. 


Cr.  Code      Our  8««. 
224    1404. 
140"). 

326  1205. 
3'27  1407. 
330  1382. 


1032 


APPENDIX. 


CHRONOLOGICAL  TABLE  OF  ACTS  OF  CON- 
GRESS OTHER  THAN  REVISED  STATUTES 
AND  CODE  SECTIONS,  AND  AMENDATORY 
ACTS. 


ACTS  OF  CONGRESS. 

Acts                       Our  Sec.   Acts 

Our  Sic. 

1872  June  1,C.  255        1659 

1892  July  20,  C.  209 

520 

1874  June  1,  C.  200         545 

1892  July  20,  C.  209  §§  1,  2,  3,  4 

404 

1874  June  20,  C.  300  §  8       279 

1892  July  20,  C.  209  §  3 

528 

1874  June  22,  C.  391  §  5       572 

1892  July  26,  C.  256  §  3  pt. 

299 

1874  June  22,  C.  391  §  8'       333 

1892-  Aug.  3,  C.  361  r. 

425 

1874  June  22,  C.  391  §  21      240 

1893  Mch.  3,  0.225  §  1 

621 

1874  June  22,  C.  391  §  22      239 

1893  Mch.  3,  C.  225  §  1 

640 

1875  Feb.  22,  C.  95  §  2         28  r. 

1893  Mch.  3,0.225  §§  1,2,3, 

463 

1875  Feb.  22,  C.  95  §  3         28  r. 

1893  Mch.  3,  C.  225  §  2 

621 

1875  Feb.  22,  C.  95  §§  5-6r      28  r. 

1893  Mch.  3,  C.  225  §  2 

640 

1875  Meh.  1,  C.  114§4pt.     586 

1893  Mch.  3,  C.  225  §  3 

621 

1875  Mch.  3,  §  9           1691 

1893  Mch.  3,  C.  225  §  3 

641 

1876  June  30,  C.  156  §  2       252 

1894  July  31,  C.  174  §  17 

292 

1876  Aug.  15,  C.  304          376 

1894  Aug.  18,  0.301 

1261 

1878  Meh.  16,  C.  37          338 

1895  Jan.  12,  C.  23  §  73  pt. 

278 

1882  Aug.  3,  C.  378  §  1      1305 

1895  Jan.  25,0.45 

292 

1882  Aug.  3,  C.  378  §3      1306 

1896  Mch.  2,  C.  39  §  1 

246 

1882  Aug.  3,  C.  378  §  4       417 

1896  May  28,  C.  252  §  6 

413 

1882  Aug.  3,  C.  378  §§  5-6    1307 

1896  May  28,  C.  252  §  6 

411 

1882  July  5,  C.  225  §  1       235 

1896  May  28,  C.  252  §  7 

411 

1884  July  5,  C.  225          235 

1896  May  28,  C.  252  §  8 

34 

1887  Feb.  4,0.104§18J  7^8r. 

1896  May  28,  C.  252  §  9 
1896  May  28,  C.  252  §  10 

413 
30 

1888  Aug.  1,  C  729         462 

1896  May  28,  C.  252  §  11 

31 

1888  Aug.  1,  C.  729  §  1  pt.     627 

1896  May  28,  C.  252  §  19 

35 

1888  Aug.  1,  C.  729  §  1  pt.     625 

1896  May  28,  C.  252  §  20  pt. 

1080 

1888  Aug.  1,  C.  729  §§  1-2     620 

1896  May  28,  C.  252  §  21  pt. 

415 

1888  Aug.  1,  C.  729  §  2       626 

1896  May  28,  C.  252  §  24 

34  r. 

1889  Mar.  2,  C.  382     253,  1383 

1897  Jan.  15,  C.  29  §  2 

1405 

1890  Apr.  9,  C.  73  §  3        272 

1897  Jan.  15,  C.  29  §  3 

1404 

1890  July  2,  C.  647  §  5  pt.    1145 

1897  Mch.  3,0.395 

982 

1891  Mch.  3,  C.  529  §  5      1388 

1898  May  17,  C.  339  §  2 

381 

1891  Mch.  3,  C.  517  §  4  §  6  pt.  1655 

1898  June  24,  §  495 

29  i. 

1891  Mch.  3,0.529  §7      1389 

1898  July  1,0.  541  §§24-25 

1503 

1891  Mch.  3,  C.  561  §  8  pt.     245 

375 

1891  Mch.  3,  C.  529  §  9      1390  ' 

1900  May  27,  C.  200  §  1 

350 

1891  Meh.  3,  C.  517  §  11  pt.   1657 

1901  Feb.  6,  C.  217  §  2 

380 

1891  Mch.  3,  C.  517  §  11  pt.   1653 

1901  Mch.  3,  C.  845  §  2 

416 

1891  Mch.  3,  C.  517  §  11  pt.   1659 

1902  May  31,  C.  946  §  1 

247 

1892  .Mch.  9,  C.  14          389 

1902  x  June  21,  0.1138 

425 

1892  Mch.  9,  C.  14  r.        580 

1903  Feb.  14,  C.  552  §  1  pt. 

307 

]892  Mch.  9,0.14          370 

19(13  Feb.  19,  C.  708  §  1 

S'O 

1892  Mch.  9,0.14          460 

1903  Feb.  19,  C.  708  §  3  pt. 

357 

1892  Julv  20,  C.  209         1668 

1904  Mch.  22,  0.748 

297 

CHRONOLOGICAL  TABLE  OP  ACTS  OF  CONGRESS. 


1033 


ACTS  OF  CONGBES8— Continued. 


Acts 

1904  Apr.  19,  C.  1398 

1905  Feb.  20,  C.  592  §  11  pt. 

1906  June  29,  C.  3591  §  3 
1906  June  29,  C.  3592  §  24 
1906  June  30,  C.  3920 

1906  June  30, 

1907  Mch.    2,  C.  2534  §§  3-4 

1907  Mch.    4,0.2939553-4 

1908  Apr.  22,  C.  149  §  6 

1908  May  27,  C.  200  5  1 

1909  Mch.    4.  C.  320540 

1909  Mch.    4,  C.  320  5  241 

1910  AprU  26,  C.  191 
1910  June  10,  C.  283  5  3 
1910  June  18,  C.  309  §  16 
1910  June  23,  C.  37355  1-5 
1910  June  23,  C.  360  5  5  pt. 
1910  June  25, 

1910  June  25,  C.  423 

1910  June  25,  C.  395  5  5 

1911  Feb.  13,  C.  43 
1911  Feb.  13,  C.  47 
1911  Feb.  13,  C.  47 

1911  Feb.  17,  C.  103  5  8  pt. 
1911  Mch.    3,  C.  224 

1911  Dec.  21,0.4 

1912  Aug.  9,  C.  278  §  5 
1912  Aug.  9,  C.  278 
1912  Aug.  17,  C.  300 

1912  Aug.  24,  C.  370  §5  3-4 
1912  Aug.  24,  C.  390  5  9  pt. 

1912  Aug.  24,  C.  390  5  9  pt. 

1913  Jan.  23,  C.  9 
1913  Jan.  23,  C.  9 
1913  Feb.  5,  C.  28 
1913  Feb.  13,  C. 50 
1913  Feb.  13,  C.  50  5  2 
1913  Feb.  26,  0.  79 

1913  Mch.  1,  C.  92  last  pt. 
1913  Mch.  3,C.  114 
1913  Mch.  4,  C.  160 
1913  July  15,  C.  6  5  5-pt. 
1913  July  15,  C.  6  5  8 
1913  July  15,  C.  6  5  9 
1913  Oct.  3,  C.  16  5  3  pt.  sub. 
1913  Oct.  22 
1913  Oct.  22,  C.  32  pt. 

1913  Oct.  22,  C.  32  pt. 

1914  Jan. 20,  C. 48  . 
1914  Aug.  l.C.  223 
1916  Feb.  23,  C. 


Our  Sec. 

Act.                      o»r  SM. 

298 

1916  Mch.  4,  C.  167          109 

303 

1914  Oct.  15,  C.  323,  Clayton 

311 

Act,  55  17.  1\  P.'.  "20. 

237 

1915  Oct.  15,  1915  C.  303, 

335 

5521,  9.2,  23,24,25,26. 

1504 

1915  Act  Jan.  28,  C.  22,  55  2-4, 

148 

55  6,  7;  fi  5. 

81 

1915  Jan.  28,  C.  22  5  6       1684 

248 

1915  Jan.  28,  C.  22  5  2       1561 

350 

1915  Jan.  28,  C.  22555-6      122 

437 

191o  Mi-h.  3,  C.  9052746       5  r. 

251  r. 

19  IT,  Mch.  3,  C.  90  5  2746       9  r. 

98 

1916  May  4,  C.  109,  39  Stats.  61,  248 

101 

1916  July  1,C.  209 

82 

1916  Sept.  6,  C.  44854      16'J:: 

1715 

1916  Srj.t.  6,  C.  448  5  6      1562 

102 

1916  Sept.  6,  C.  44856      1602 

887 

1916  Sept.  8,  C.  463  5  20     6336 

1432  r. 
103 

1916  Sept.  8,  C.  463  5  20      463 
1917  Feb.  14,  C.  53  5  17  pt.     313 

359 

1917  K.-b.  14,  C.  535  18       314 

1672 

1917  Feb.  14,  C.  53  5  20       1121 

1673 

1917  Feb.  14.  C.  53  5  26       313 

309 

1917  Feb.  15,  C.  295  25  pt.      85 

1714 

1917  Feb.  15,  C.  29  525  pt     96 

27  r. 

11M7  I'Y1>.  22.  C.  113           95 

112 

1917  Mch.  2,  C.  145  6  42     1509 

294 

1917  Mx-h.  2,  C.  145543     1509 

625  r. 

1917  Mch.  3,  C.  17152pt    1508 

294 

1917  Mch.  3,  C.  16255pt.     84 

1507 

1917  Mch.  3,  C.  16557pt    336 

1500 

1917  Mch.  3,  C.  165515     1121 

1407 

1917  Mch.  3,  C.  1655  14     1121 

1409 

1917  Mch.  3,  C.  165  5  10  pt    315 

1407 

1917  Mch.  3,  C.  165512      316 

1205 

1917  Moh.  3,  C.  1655  19     1726 

1205 

1917  Mch.  4,  C.  179 

312 

1917  July  2,C.—         1727 

1718 

1917  Aug.  8,C.—  5»       1728 

396 

1917  Aug.  10,  C.  —  52        860 

1109 

1917  Aug.  10,  C.  —  J  7       1725 

114 

1917  Sept.  24,  C.  —  5  12  pt.    359 

114 

1917  Oct.  6,0.  —  §7  pt     17J1 

1082 

1917,  Oct.  6,C.—          359 

N.1451 

1917.  Oct.  6.C.— 

3r. 

1917.  Oct.  6.C.  —  |9        513 

82 

1917,  Oct.  6.C.  —  §10 

1551 

1917,  Oct.  6.T.  —  510      1723 

204 

1917.  Oct.  6.C.  —  J17       1719 

413  r. 

1917.  Oct.  6,C.  —  5  18       1720 

113 

1917,  Oct.  6,  C.—  5<05     1724 

1034 


APPENDIX. 


TABLE  OF  SUPREME  COURT  RULES. 


Rule  No. 
2 
2 
4 
4 
6 


Our  Sec.  Rule  No. 

Our  See 

Rule  No. 

1474 

Pt,  8 

1669 

Pt.  8 

1532 

Pt.  8 

1670 

14 

461 

Ft.  8 

1675 

15,  §§  1,  2, 

614 

Pt.  8 

1685 

15,  §  3, 

1689 

Our  Ser. 
1686 
1689 
1692 
1694 


TABLE  OF  CIRCUIT  COURTS  OF  APPEALS 

RULES. 


Rule  No. 
7 

10 
10 


Our  Sec.    Rule  No. 

Our  Se<s.    Rule  No. 

1474 

14 

1669 

18 

461 

14  * 

1675 

18 

614 

14 

1685  r. 

Our  Sec. 
1689 
1690 


TABLE  OF  EQUITY   KULES. 


TABLE  OF  EQUITY  RULES. 


Eq.  Bol«  Oar  Sew. 

1    52r,  53r,  660r. 
1    (2nd)  822. 
3 

4  825. 

5  823. 

6  821,  822. 

7  790-1112. 

8  6r,  473r,  1112,  1140.  1143. 

9  6r,  1143. 

10  1140 

11  795. 

12  601r,  604,  665,  698r,  791,  792r, 

810,  811,  812r,  963r. 

13  797,  798. 

14  794. 

15  796. 

16  665r,  810r,  811,  811r,  963r. 

17  813. 

18-    690r,  960r,  965,  1164. 

19  760,  1164. 

20  812r,  920,  967. 

21  812r,  820r,  995,  930,  933,  967, 

968. 

22  5r,  472,  812r. 

23  863,  864. 

24  669,  965. 

25  127r.  660r,  692,  <593r,  694r, 

695r,  697r,  888,  965r. 

26  750,  864. 

27  740,  742r,  743r. 

28  760,  86r. 

29  97r,  132r,  181r,  666r,  667r, 

812r.  820r.  822,  880,  881,  883. 

29  884,  887,  888,  900,  901,  902, 

903,  904,  921,  960r,  961. 
963r,  964. 

30  924,  931,  960r,  962,  964,  966, 

981,  982,  983,  984,  985,  986. 

30  (2nd)  980. 

31  669,  672,  674,  980r,  982,  983, 

1001,  1010,  1011. 

32  668',  963. 

33  822,  904,  966,  987,  673,  980. 

1000,  1001. 

34  770,  967,  983,  11«4. 

35  773. 

36  699,  700,  965. 

37  (710,  711r,  712r,  713r,  714r), 

984. 


|  Eq.  RaU            Our  SM. 

38  (715,  71«r,  717r,  718r). 

39  697r,  (719,  7l!0r). 

40  721. 

41  722. 

42  723. 

43  824,  762. 
.44  724,  824. 

45  780,  763. 

46  720,  1040r,  1043,  1164. 

47  370,  372,  373,  374,  663,  871, 

1022,  1020,  1040r,  1041r. 

48  1045.  1041r,  923. 

49  380. 

50  1044. 

51  381,  382,  140. 

52  390. 

53  391  • 

54  1040,  1041r,  372,  1020,  671. 

55  1020,  392. 

56  677,  1030,  676r. 

57  1032,  1033,  679,  678. 

58  940,  270r,  662r,  670r,  890r.  941- 

945r,  948-950r,  962r.  »83r. 

59  1061. 

60  1062. 

61  1070. 
fi2  1063. 

63  1065,  1063. 

64  1063. 

65  1063. 

66  1070,  1071,  1072,  1074. 

67  1670. 

68  1060,  20r,  41r. 

H9  1164,  1162,  1160,  1142. 
70 

71  1140,  1080. 

72  1160,  10S1. 

73  822.  linn.  H04,  1105,  1108. 

74  1107,  1667. 

75  1871. 

76  1671. 

77  1671. 

78  899,  700,  965,  58r,  8r. 

79  Appendix. 

80  Appondix. 

81  Appendix. 


1036 


APPENDIX. 


TABLE  OF  CONSTITUTIONAL  PROVISIONS. 


U  8.  Const. 
Art.  1,  Pt.  §9 
Art.  1,  Pt.  §  10 
Art.  3,  §  1,  el.  1, 
Art.  3,  §  2,  cl.  1, 
Art.  3,  §  2,  cl.  1, 


Our  Sec. 
1330 
124 
125 


U.  8.  Con  it. 
Art.  3,  §  2,  cl.  1, 
Art.  3,  pt.  §  1, 
Art.  4,  §  1, 
Art.  4,  §  2, 


Our  S««. 
125 
4 

124 
124 


TABLE  OF  AMENDMENTS  TO  THE   UNITED 
STATES  CONSTITUTION. 


Amendments 
Art.  4  §  3 
Pt.  5th 
Pt.  5th 
Pt.  6th 
Pt.  6th 
Pt.  6th 
7th,  6th 


Our  See. 

Amendment* 

131  r. 

7th 

336 

7th 

1360 

7th 

339 

Pt.  llth 

1364 
1365 
5r. 

Pt.  14th,  §  1 
15th,  S  1 

Our  8e«. 
458 
581 
582  r. 

3 

124 
124 


INDEX. 

(1037) 


[References  are  to  Sections.] 


A. 

ABATEMENT,  answer  in  the  nature  of  a  plea  in  abatement,  ch.  40,  Eq.  R. 

29,  §§  406,  900. 
nonjoinder,  §  74. 

plea  in,  no 'reversal  for  error  in  ruling  on,  except  to  jurisdiction,  {  1686. 
suit  pending,  not  considered  on  motion  to  dismiss,  i  884. 

ABSENCE  OF  JUDGE,  adjournment  of  court,  i  51. 

ABSENCE  OF  PERSONS  who  would  be  proper  parties,  Eq.  B.  39,  §§  719,  697. 

ABSENT  DEFENDANT, 
venue,  §  66. 
writ  of  sequestration,  Eq.  R.  7,  (  1112. 

ACCOUNT, 

finding  bj  master  in  matters  of  account,  Eq.  R.  66,  |fi  576,  1070. 
forms  of,  before  master,  Eq.  R.  63,  §{  1063,  1065. 
identified  but  not  stated  in  the  master's  report,  Eq.  R.  61,  9  1070. 
interrogatories  to  party  before  master,  Eq.  R.  58,  §§  270,   670,  940,  962. 
matters  of,  reference  to  master,  Eq.  R.  59,  i  1061. 

ACCOUNTING,  form  of  master's  order  on,  §  1062. 

ACCUSED,  see  that  subhead  under  heading  Criminal  Procedure. 

ACKNOWLEDGMENTS,  |  574. 

ACTION,  see  also  Actions,  below. 

at  law,  erroneously  begun  as  suit  in  equity,  transfer,  Eq.  B.  22, 1 5, 

ch.  37,  §472. 

intoxicating  liquors,  injuries,  9  1726. 
joinder  of  causes  of,  Eq.  R.  26,  ch.  30. 
law — matters  ordinarily  determiiiable  in,  when  arising  in  equity  suit  are 

determinate  there,  Eq.  R.  23,  ch.  38. 

to  be  presented  in  name  of  real  party  in  interest,  Eq.  R.  37,  |  710. 
•war  risk  insurance,  1 1724. 

(1039) 


1040  INDEX. 

ACTIONS,  see  also  Action,  above. 

at  law,  see  Law  Actions — summarized,  ch.  15,  §§  59-62. 
criminal  prosecutions,  see  Criminal  Procedure,  ch.  59  et  seq. 
.    for  neglect  to  prevent  conspiracy  against  civil  rights,  limitations,  §  409. 
in  equity,  see  Equity  Suits — summarized,  ch.  25. 
motion  to  transfer  from  equity  to  law  side,  ch.  37. 

ACTS  OF  CONGRESS,  table  of  statutes,  Appendix,  p.  1032. 
ADDITIONAL  RULES  by  district  court,  Eq.  R.  79,  §§8,  58. 
ADEQUATE  REMEDY  AT  LAW,  §  267,  Jud.  Code,  ch,  37.  . 

ADJOURNMENTS, 

see  also  Continuances. 

absence  of  district  judge,  §  51. 

criminal  cases,  monthly,  to  expedite,  §  51. 

district  courts,  absence  of  judge,  §  51. 

law  actions,  §  456. 

master's   examination,  Eq.   R.   60,  §  1062. 

Supreme  Court,  §  1533. 

ADMINISTRATOR  as  party,  Eq.  R.  37,  |  710. 

ADMIRALTY, 

C.  C.  A.  rules  follow  general  rules  C.  C.  A.  Appendix. 

food  products  and  fuel,  procedure  for,  libel  conforms  to,  §  1725. 

rules  C.  C.  A.  Appendix,  p.  845  et  seq. 

ADMIRALTY  COURT,  open  when,  §  52. 

ADMISSIBILITY, 

of  evidence  in  equity  suits,  §  1043. 

of  evidence     offered  to  be  passed  on  by  court,  Eq.  R.  48,  §  1043. 

ADMISSION  of  execution  of  documents,  Eq.  R.  58,  §  940. 

ADMISSION  TO  PRACTICE, 

circuit  court  of  appeals,  §  1474. 
Rule  7,  C.  C.  A.  Appendix, 
court  of  claims,  §  1430. 
district  court,  §  56. 
Supreme  Court,  §  1532. 

ADVANCEMENT   of  causes,  notice  of  interlocutory  orders,   etc.,  Eq.   R.  6, 
§821. 


INDEX. 

AFFIDAVIT, 

amendment  of  attachment,  conforms  to  state  law,  f  486. 

experts,  patent  and  trademark  cases,  Eq.  B.  48,  §5  1041,  1045. 

expert  witnesses  in  patent  and  trademark  cases,  provision*  u  to,  Eq.  B. 

48,  §§  1041,  1045. 

motion  to  dismiss  does  not  consider,  §  883. 
oath  to,  §  359. 

on  application  for  preliminary  injunction,  Eq.  B.  73,  §  1103. 
plaintiff's,  of  noncompliance  with  decree,  attachment  to  issue,  Eq.  B.  8, 

§§  473,  1112,  1140,  1143. 
previously  used  in  court,  etc.,  may  be  used  before  master,   Eq.   B.   64, 

11063. 

required  on  application  for  continuance,  Eq.  B.  57,  §  678. 
to  be  identified  but  not  stated  in  master's  report,  Eq.  B.  61,  9  1070. 
to  be  made  of  service  of  process  by  person  appointed  therefor,  Eq.  B.  15, 

im, 

AFFIBMANCE,  damages  and  costs  to  respondent  for  delay,  5  1687. 
AGENT,  extradition  from  foreign  country,  powers  of,  9  1313. 
AGGBEGATING,  amounts  in  controversy  to  create  jurisdiction,  9  178, 
AGBEED  statement,  record  on  appeal,  Eq.  B.  77,  §  1671. 
AGBICULTUBE,  jurisdiction  district  court,  5  98. 

ALABAMA,   districts,   terms  and   place*  of   holding  courts,  9  70,   Jud.   Code, 
Appendix. 

ALASKA, 

appeal  and  error  to  circuit  court  of  appeals,  §9  1505,  150ft. 

appeal  and  error  to  Supreme  Court,  §  1561. 

certification  of  questions  to  Supreme  Court  from  ninth  circuit,  9  1684. 

certiorari,  ninth  circuit  to  Supreme  Court,  9  1684. 

district  court,  procedure  on  appeal  to  Supreme  Court,  9  1679. 

prohibition  laws, 

competency  of  witnesses  under,  9  331. 

injunction  against  violation  of,  §1121. 

sufficiency  of  evidence  to  convict,  9  314, 

things  as  evidence  under,  9  313. 

ALIAS  SUBPOENA,  Eq.  B.  14,  9  794. 

ALIENS, 

claims  of,  court  of  claims,  9 
diverse  citizenship  of,  9  152. 
Manual— 68 


1042  INDEX. 

ALIENS  (Continued). 

enemies — jurisdiction  district  court,  §  99. 

enemy,  statute  of  limitations  under  trading  with  tie  enemy  act,  §  1721. 

same,  duties  of  marshal,  §  100. 

federal  officers,  suits  against,  removal  of  causes,  §  206. 
habeas  corpus  in  removal  suits  against  federal  officers,  §  208. 
removal  of  causes,  suits  against  federal  officers  by,  §  206. 
right  to  sue  and  be  sued,  §  152. 
state  against,  in  Supreme  Court,  §  1534. 
statute  of  limitations  trading  with  the  enemy  act,  §  1721. 
suits  between  aliens  and  citizens,  §  152. 
Supreme  Court,  as  parties  in,  §  1534. 
trading  with  the  enemy,  see  that  heading,  §  1721. 

ALIEN  PROPERTY  CUSTODIAN,  trading  with  the  enemy  act,  notice  to 
in  infringement  suits,  §  1723. 

ALLOWANCE, 
appeal,  §  1658. 

circuit  court  of  appeals,  Rule  35  C.  C.  A.  (2d  Circuit)  Appendix. 
habeas  corpus,  writ  of,  §  1335. 
interest,  judgment  law  actions,  §  623. 
writ  of  error,  §  1658. 

ALTERNATIVE  DEFENSES  may  be  stated  in  answer,  Eq.  R.  30,  §  964. 
ALTERNATIVE  PRAYERS  in  bill,  Eq.  R.  25,  §  698.       s 
AMBASSADORS,  suits  against,  in  Supreme  Court,  §  1534. 

AMENDED  BILL, 

answer  to,  Eq.  R.  32,  §§  668,  962. 

AMENDMENT,    ch.   31. 

affidavit  for  attachment,  §  487. 

amount  in  controversy,  shown  by,  §  179. 

answer,  Eq.  R.  33,  ch.  46,  §  968. 

answer  by  leave,  on  reasonable  notice,  Eq.  R.  30,  §  964. 

answer  in  equity,  §  966. 

answer— notice,  Eq.  R.  30,  §  964. 

as  of  course,  Eq.  R.  28,  ch.  31. 

as  to  amount,  §  179. 

attachment  affidavit,  §  487. 

attachment  writ,  §  489. 

bill  in  equity,  §  760. 


INDEX.  1043 

AMENDMENT  (Continued). 

Constitution,  table  of  citations  of,  Appendix,  p.  1038. 

not  after  defendant's  pleading  filed,  except,  etc.,  Eq.  R.  28,  ck.  31. 

on  suggestion  of  defect  of  parties,  Eq.  B.  43,  i  762. 
constitutional,  fourteenth,  §  219. 
counterclaim  in  equity,  i  966. 
defect  in  parties,  §  762. 
death  of  party,  bill  in  equity,  §  763. 
defensive  pleading  at  law,  9  546. 
generally,  Eq.  B.  19,  8  760. 
habeas  corpus  return,  §  1340. 
judgment  law  actions,  i  629. 
law  actions,  9  455. 

pleadings  on  substitution  of  parties,  Eq.  R.  45,  $  762. 
permitted  of  any  process,  pleading,  record  etc.,  Eq.  R.  19,  |  760. 
process  at  law,  §  623. 
record,  Eq.  B.  19,  i  760. 
setoff  in  equity,  §  966. 
seventh  amendment,  §  5. 
supplemental  answer  in  equity,  §  967. 
to  show  diversity,  §  274c,  Jud.  Code, 
verdict,  §  612. 
writ  of  attachment,  |  489. 
writ  of  error,  §  1659. 

AMOUNT  IN  CONTBOVER8Y,  ch.  8. 

aggregating  legal  and  equitable  claims  not  permitted,  9  864. 
aggregating  to  create  jurisdiction,  9  178. 
amendment  to  show,  9  179. 
costs  and  fees,  as  affecting,  9  406. 
damages,  sounding  in,  9  174. 
defined,  9  174. 

diverse  citizenship  involved,  9  140. 
effect  of  valid  setoff  or  payment,  9  177. 
federal  question  involved,  9  128. 
good  faith  an  issue,  9  181. 
immaterial,   when,  9  173. 
includes  what,  9  176. 
injunction  suits,  9  174. 
issue,  how  raised,  9  181. 

jurisdiction,  aggregating  amounts,  now  affects,  99  178,  864. 
jurisdiction,  how  affected,  eh.  8. 
land  grant  cases,  9  172. 
materiality  of,  9  271. 
materiality  of,  land  grant  cases,  9  172. 
when  not  an  issue,  9  173. 


1044  INDEX. 

AMOUNT  IN  CONTROVERSY   (Continued), 
matter  in  dispute,  §  170. 
money  demand,  §  174. 
mortgage  foreclosure,  §  174. 
payment,  effect  of,  §  177. 
pleading  of,  §  175. 
property  sued  for,  §  174. 
quieting  title,  §  174. 

raising  issue  as  to  amount  or  good  faith,  §  181. 
eetoff,  effect  of,  §  177. 

splitting  demand,  state  statutes  do  not  control,  §  180. 
stated  in  declaration  or  bill  controls  unless  pleaded  erroneously  or  in  bad 

faith,  §  175. 
what  included,  §  176. 
what  is,  §  172. 

ANSWER,  see  also  Answer  as  a  Plea,  Answer  in  Equity,  below, 
abatement,  Eq.  R.  29,  §  900. 
alternative  defenses,  §  964. 
amended  bill,  Eq.  R.  32,  §§  668,  962. 

amendment  of,  by  leave,  on  reasonable  notice,  Eq.  R.  30,  §  964. 
cause  at  issue  on  filing  of,  unless  etc.,  Eq.  R.  31,  ch.  47,  §  669. 
contents,  counterclaim,  Eq.  R.  30,  §  980. 
counterclaim  in,  Eq.  R.  30,  §  980. 

cross-bill,  matters  of,  to  be  stated  in,  Eq.  R.  30,  §  980. 
differences,  federal  and  state,  §  961. 
default — decree  pro  confesso,  Eq.  R.  16,  §  811. 

defendant  to  file  within  time  named  in  subpoena,  Eq.  R.  16,  §  811. 
defenses  formerly  presented  by  plea  in  bar  or  abatement,  to  be  made  in, 

Eq.  R.  29,  ch.  40,  §  900. 
defenses  in  alternative,  Eq.  R.  30,  §  964. 
defenses  to  be  presented  in,  Eq.  R.  29,  §  900. 
enlarging  time  for  filing,  Eq.  R.  17,  §  813. 

enlarging  time  for  filing  when  bill  taken  pro  confesso,  Eq.  R.  17,  §  813. 
exceptions  for  insufficiency  of,  abolished,  Eq.  R.  33,  ch.  46,  §  968. 
exceptions  to,  for  scandal  and  impertinence,  shall  not  obtain,  Eq.  R.  21, 

§§  968,  820. 

form  of  allegations  raising  issue  of  venue,  §  86. 
filing,  §§  811,  900. 
hearing  on  bill   and,  §  969. 

if  insufficient  may  be  amended  as  matter  stricken  out,  Eq.  R.  33,  ch.  46. 
if  not  filed  after  motion  to  dismiss  denied  decree  pro  confesso  entered, 

Eq.  R.  29,  §  900. 
insufficiency  of  cause  of  action,  §  902. 


INDEX. 

ANSWER  (Continued). 

interrogatories,  Eq.  B.  58,  §§  270,  670,  940,  962. 

as  to  matter  in,  §  945. 
in  the  nature  of  a  plea,  ch.  40. 
may  be  stricken  out  for  failure  to  answer  interrogatories  or  produce  docu 

ments,  Eq.  B.  58,  §§  270,  670,  940,  962. 
may  state  defenses  in  alternative,  Eq.  B   30,  §  964. 
motion  to  enlarge  time  for  filing,  Eq.  B.  17,  §  813. 
motion  to  strike  out  tests  sufficiency,  Eq.  B.  33,  ch.  46,  §  968. 
new  or  supplemental  to  be  filed  to  amended  bill,  Eq.  K.  32,  $  962. 
plea  in  bar,  presented  by,  Eq.  B.  29,  ch.  40,  {  900. 
plea  in,  dismissal  of  bill,  §  904. 
pleading,  defenses,  §  903. 

issue  raised  by,  §9  902,  903. 

separate  hearing,  §  901. 
reply  to,  when,  Eq.  B.  31,  ch.  47,  §  1010. 
reply,  when  required,  9  1010. 
sufficiency  tested  by  motion  to  strike  out,  9  1000. 
subpoena,  proper  process  to  compel,  Eq.  B.  7,  9  790. 
time  for,  Eq.  B.  12,  16,  §§  665,  810,  811,  963. 
time  for,  enlarging,  Eq.  B.  16,  95  665,  810,  811. 
time  for  enlarging  when  bill  taken  pro  confesso,  Eq.  B.  17,5813, 
to  amended  bill,  Eq.  B.  32,  5  962. 

to  avoid  general  denial  of  averments  of  bill,  Eq.  B.  30,  9  964. 
to  be  filed  within  five  days  if  motion  to  dismiss  be  denied,  Eq.  B.  29. 

99  800,  900. 

to  be  filed  within  time  named  in  subpoena,  Eq.  B.  16,  9  811. 
to  be  identified  but  not  stated  in  the  master's  report,  Eq.  B.  61,  9  1070. 
to  omit  statement  of  evidence,  Eq.  B.  30,  9  964. 
to  specifically  admit,  or  deny,  or  explain  facts  upon  which  plaintiff  relies, 

Eq.  B.  30,  9  964. 

to  state  counterclaims,  Eq.  B.  30,  9  980. 

value,  allegations  of  not  confessed  by  failure  to  deny,  Eq.  B.  30,  9  980. 
venue,  raising  issue  of,  in,  9  86. 
verification  before  whom,  Eq.  B.  36,  9  965. 
what  to  contain,  Eq.  B.  30,  9  964. 

when  defect  of  parties  suggested,  proceedings  on,  Eq.  B.  43,  9  824. 
when  to  be  filed  on  motion  to  set  aside  decree  pro  confesso,  Eq.  R.  17, 

1813. 

ANSWER  AS  A  PLEA,  ch.  40.     See  also  Answer,  above,  and  Answer  in  Equity, 
below. 

A.NSWEB  IN  EQUITY,  eh.  44.     See  also  Answer,  above, 
amendments  to,  9  966. 
attacks  upon.  9  968. 


1046  INDEX. 

ANSWER  IN  EQUITY   (Continued), 
certainty  in,  motion  for,  §  968. 
contents  of,  §  964. 
counterclaim  in,  §  980   et  seq. 
cross-bill,  matter  of,  contained  in,  §  983. 
definiteness  in,  motion  for,  §  968. 
discovery,  §  940. 
effect  of,  §§  960,  962. 

effect  of  failure  to  plead  counterclaim  or  setoff,  §  986. 
evidence,  is  not,  §  962. 
form  of,  §  965. 

impertinent  matter  in,  motion  to  strike,  §  968. 
independent  suit  in  counterclaim,  §  982. 
irrelevant  matter  in,  motion  to  strike  out,  §  968. 
issue,  §  1010. 

motion  to  make  more  definite  and  certain,  §  968. 
motion  to  strike  out  counterclaim  or  setoff,  §  968. 

motion  to  strike  redundant,  impertinent,  or  scandalous  matter  in,  §  968. 
pleading,  ch.  44. 

redundant  matter  in,  motion  to  strike,  §  968. 
reply,  when  required,  §  1010. 
scandal  in,  motion  to  strike,  §  968. 
setoff  pleaded  in,  §  980. 
supplemental,  §  967. 
time  for,  §§  665,  963. 

time  for,     after  overruling  motion  to  dismiss,  §  6f 7. 
time  for,  to  amended  bill,  §  668. 

ANTI-TRUST  LAWS. 

depositions,  public,  §  398. 
witnesses,  immunity  under,  §  335. 

APPEAL,  see  also  below,  Appeal  and  Error. 
agreed  statement — record,  Eq.  R.  77,  §  1671. 
Alaska  district  court  to  circuit  court  of  appeals,  §§  1505,  1506. 
Alaska  district  court  to  Supreme  Court,  §  1561. 
allowance  of,  §  1658. 
assignment  of  errors,  §  1661. 

China,  United  States  court  for,  to  circuit  court  of  appeals,  §  1504. 
circuit  court  of  appeals, 

bankruptcy  cases,  Rule  45  C.  C.  A.   (8th  Circuit)   Appendix. 

instructions  as  to  taking,  Addenda  Eule  45  C.  C.  A.  Appendix. 

rules  as  to  taking,  Rule  14  C.  C.  A.  Appendix. 

to  Supreme  Court,  §  1559. 
citation  on,  |  1663. 


INDEX.  1047 

APPEAL  (Continued). 

court  of  claims,  §  1440. 

court  of  claims  to  Supreme  Court,  |  1560. 

court  customs  appeals,  time  for,  §  1455. 

decree  with  agreed  statement,  Eq.  B.  77,  §  167L 

defined,  §  1650. 

dismissal  of,  §  1688. 

district  court  to  circuit  court  of  appeals,  §  1501. 

district  court  direct  to  Supreme  Court,  §  1551. 

District  of  Columbia  to  Supreme  Court,  §  1561. 

duties  of  judges  on,  9  1510. 

error  in  striking  out,  §  933. 

error,  see  Appeal  and  Error. 

Hawaii  supreme  court  to  United  States  Supreme  Court,  9  1661. 

instructions  as  to  taking  to  circuit  court  of  appeals,  Addenda  Bole  45 

C.  C.  A.  Appendix. 

interlocutory  orders  district  court,  9  1502. 
injunction  against  enforcement  of  state  laws,  9  1111. 
injunction  pending,  9  1107. 
injunction  pending,  Eq.  B.  74,  99  1107,  1667. 
mandate,  9  1690. 
parties  in,  §  1651. 

Philippine  Islands  to  Supreme  Court,  9  1561. 
Porto  Rico  courts  to  Supreme  Court,  9  1561. 
powers  of  judge  in,  9  1510. 
procedure  in  circuit  court  of  appeals,  9  1657. 

receivership  proceedings  district  court  to  circuit  court  of  appeals,  1 1502. 
record  on — agreed  statement,  Eq.  B.  77,  9  1671. 

costs — correction  of  omission,  Eq.  B.  76,  9  1671. 

differences  as  to,  Eq.  B.  75,  9  1671. 

reduction  and  preparation,  Eq.  B.  75,  9  1671. 
return  of,  9  1675. 
return,  time  for,  9  1675. 

sentences  prize  cases  to  Supreme  Court,  9  1564. 
statement  on,  to  be  filed  in  office  of  clerk,  Eq.  B.  75,  9  1671. 
summary  of  procedure,  9  1676. 

Supreme  Court  from  circuit  court  of  appeals,  9  1559. 
time  for  appeals, 

circuit  court  of  appeals  to  Supreme  Court,  9  1655, 

district  court  to  circuit  court  of  appeals,  9  1653. 

district  court  to  Supreme  Court,  9  1652. 

from  interlocutory  orders,  9  1654. 
writ  of  error,  see  Appeal  and  Error. 


1048  INDEX. 

APPEAL  AND  ERROR,  chs.  74,  75. 

Alaska  certification  to  Supreme  Court  from  Ninth  Circuit,  §  1684- 

Alaska,  certiorari  to  courts  of,  §  1684. 

allowance  of  appeal,  §  1658. 

allowance,  writ  of  error,  §  1658. 

amendment,  writ  of  error,  §  1659. 

assignment  of  errors,  §  1661. 

bond  on  appeal, 

none  required  by  United  States,  §  1665. 
certification  to  Supreme  Court, 

by  circuit  court  of  appeals,  §  1678. 

by  District  of  Columbia  court  of  appeals,  §  1683. 
certification,  question  of  law,  §  1677. 
certiorari,  §  1677, 

Alaska,  cases  in,  §  1684. 

circuit  courts  of  appeals,  by,  §  1677. 
circuit  courts  of  appeals, 

certification  to  Supreme  Court,  §  1678. 

certiorari  to,  §  1677. 

death  of  party— effect  of,  §  169*2. 

filing  record,  $  1671. 

printing  record,  §  1671. 

record  in,  as  part  of  transcript,  §  1673. 

time  for, 

from  district  courts,  §  1653. 
from  interlocutory  orders,  §  1654. 
to  Supreme  Court,  §  1655. 

writ  of  error,  procedure,  §  1657. 
summary  of  procedure,  §  1676. 

writ  of  error — time  for,  §  1654. 
citation  on,  §  1663. 
costs,  §  1687. 

costs  double,  in  court's  discretion  for  delays,  §  1687. 
damages,  §  1687. 
death  of  party,  effect  of, 

after  judgment — before  appeal,  §§  1691,  1692. 

pending  appeal  to  Supreme  Court,  §  1692. 

pending  appeal  to  circuit  court  of  appeals,  §  1692. 
differences  law  and  equity,  §  6. 
diminution  of  record,  §  1689. 
dismissal  of  appeals,  §§  1688,  1693. 

district  appeal  to  Supreme  Court,  one  record  suffices  both  parties,  §  1674 
district  court  of,  to  United  States  Supreme  Court,  §  1679. 


INDEX.  1049 

APPEAL  AND   ERROR   (Continued), 
district  courts, 

time  for  appeal  from,  to  circuit  courts  of  appeals,  §  1653. 

time  for  Supreme  Court,  §  1652. 
district  court  of  Alaska  to  Supreme  Court,  9  1679. 
district  court  of  Porto  Rico  from,  9  1680. 

District  of  Columbia  court  of  appeals, 

appeals  from,  or  writs  of  error  to,  §  1682. 

certification  to  Supreme  Court,  §  1683. 
equity  rules — preparation  of  record  under,  9  1671. 
errors,  assignment  of,  9  1661. 
error,  writ  of,  99  1657,  1676. 

fact,  error  in,  not  cause  for  reversal,  9  168C. 

time  for,  state  to  Supreme  Court,  9  1655. 

time  for  return  of,  9  1675. 

filing  record  on  appeal  in  circuit  court  of  appeals,  99  1671,  1672. 
filing  record  on  error,  9  1670. 
final  decisions, 

court  of  appeals,  review  by  certiorari,  9  1677. 
forma  pauperis — proceeding  in,  9  1668. 
from  circuit  court  of  appeals  to  Supreme  Court, 
from  Alaska  Supreme  Court  from  ninth  circuit,  9  1684. 
injunction  pending  appeal,  9  1667. 
interlocutory  orders,  time  for  appeal  from,  9  1654. 
issuance  of  writ  of  error  to  Supreme  Court,  9  1660. 
mandate,  9  1690. 

orders,  interlocutory,  time  for  appeal  from,  9  1654. 
parties.  9  1651. 

Philippines,  from  supreme  court  of,  9  1681. 
Porto  Rico,  from  supreme  and  district  courts  of,  9  1680. 
preparation  of  record,  §§  1670,  1678. 
printing  record,  9  1672. 
printing  record  on  appeal, 

to  circuit  court  of  appeals,  9  1671. 

to  Supreme  Court,  1 1673. 
procedure, 

district  court -to  circuit  court  of  appeals,  9  1657. 
summaries,  9  1676. 
territories,  §§  1679-1685. 

procedure  after  transcript  reaches  appellate  court,  9  1685. 
record. §  1610. 
record,  diminution  of,  9  1689. 


1050  INDEX. 

APPEAL  AND  EEEOE   (Continued). 
record  on  appeal, 

one  record  sufficient  when  both  parties  appeal  direct  to  Supreme 

Court,  §  1673. 

printing  and  filing,  circuit  court  of  appeals,  §  1671 
printing  and  filing,  Supreme  Court,  §  1673. 
reduction  and  preparation  of,  §§  1670,  1671. 
reduction  of  record,  §§  1670,  1671. 

representatives  of  deceased  party, 

procedure  when  not  within  jurisdiction  of  Supreme  Court,  §  1692. 
reversal  not  allowed  for  error  in  facts,  §  1686. 

not  in  ruling  en  plea  in  abatement  except  to  jurisdiction,  §  1686. 
review  by  certiorari,  §  1677. 

review  of  state  court  decisions,  time  for  §  1656. 
state  courts, 

review  of  decisions  of,  time  for,  §  1656. 

see  title  state  courts. 

time  for,  §  1656. 
summary  of  procedure,  §  1676. 
supersedeas,  §  1666. 

Supreme  Court, 

Alaska  district  court,  to,  §  1679. 

certification  to,  §  1678. 

death  of  party  pending  appeal  to,  §  1692. 

printing  of  record,  §  1673. 

reduction  of  record,  §§  1670,  1671. 

time  for,  ;T<<, 

from  circuit  court  of  appeals,  §  1655. 

from  district  court,  §  1652. 
transcript  of  circuit  court  of  appeals  record  as  part  of  record  in 

Supreme  Court,  §  1673. 

transcription,  §  1669a. 

writ  of  error  to,  certification  of  questions  of  law,  §§  1677-1684. 

writ  of  error  to,  procedure,  §  1676. 
territories,  §§  1679-1685. 

time  for  appeal  and  error, 

circuit  court  of  appeal  to  Supreme  Court,  §  1655. 
district  courts  to  circuit  courts  of  appeal,  §  1153. 
district  courts  to  circuit  courts  of  appeal,  from  interlocutory  orders, 

§  1654. 

district  court  to  Supreme  Court,  §  1652. 
review  of  state  court  decisions,  §  1656. 
writ  of  error  to  state  court,  §  1656. 


INDEX.  1051 

APPEAL  AND  ERROR   (Continued). 

time  for  return  of  writ  of  error,  fi  1675. 

of  appeal,  §  1675. 
transcript  in  appeal,  §  1669. 

see  also  Record  on  Appeal. 
United  States,  no  bond  required  of,  (1665. 
writ  of  error,  §§  1657,  1676, 

parties,  §  1651. 

state  courts  to  Supreme  Court,  time  for,  §  1656. 

time  for  return  of,  §  1675. 

APPEARANCE, 

bond  on  writ  of  error  in  criminal  cases,  Addenda  Rule  45  C.  C.  A. 

Appendix. 

defensive  pleading  at  law,  eh.  19. 
defensive  pleading  in  equity,  chs.  35,  36. 

filed  with  clerk  to  be  noted  in  equity  docket,  Eq.  R.  3,  Appendix, 
nominal  parties,  Eq.  R.  40,  |  721. 
subpoena  proper  process  to  compel,  Eq.  R.  7,  8  790. 

APPELLANT, 

to  condense  evidence,  etc.,  Eq.  R.  75,  §  1671. 

to  file  precipe  indicating  portion  of  record  on  appeal,  Eq.  R.  75,  9  1671. 

to  notify  opposing  party  or  solicitors,  etc.,  Eq.  R.  75,  §  1671. 

APPELLATE, 
jurisdiction, 

at  law,  chs.  71,  73. 

circuit  court  of  appeals,  see  Appellate  Jurisdiction  Circuit  Court  of 

Appeals,  ch.  71. 

district  court,  see  Appellate  Jurisdiction  District  Court,  ch.  5. 
in  equity,  en.  75. 

Supreme  Court,  see  Appellate  Jurisdiction  of  the  Supreme  Court,  ch.  73. 
procedure,  at  law  and  in  equity,  see  Appeal  and  Error,  chs.  74,  75. 

APPELLATE  COURT, 

may  direct  further  steps  as  justice  may  require.  Eq.  R.  46,  8  1043. 
not  to  reverse  decree  unless,  Eq.  R.  46,  98  1043,  1686. 

APPELLATE  JURISDICTION  DISTRICT  COURT,  • 

Chinese  exclusion  laws,  9  104. 
consular  awards,  9  106. 
Yellowstone  National  Park,  9  203. 


1052  INDEX. 

APPELLATE  JURISDICTION  OF  CIRCUIT  COURT  OP  APPEALS,  ch.  70. 
Alaska,  appeal  and  error  from  district  court  in,  §§  1505,  15U6. 
appeal, 

Alaska,  district  court,  §§  1505,  1506. 

Canal  Zone  decision,  §  1507. 

China,  United  States  court,  §  1504. 

Danish  West  Indian  Islands,  §  1508. 

district  court,  §  1501. 

duties  of  judge  on,  §  1510. 

interlocutory  orders  district  court,  §  1502^ 

Porto  Rico,  §  1509. 

powers  of  judge  on,  §  1510. 

receivership  proceedings,  §  1502. 
bankruptcy,  §  1503. 
China,  United  States  court,  §  1504. 
district   court, 

appeal  and  error  to  circuit  court  of  appeals,  §  1501 

appeals  interlocutory  orders,  §  1502. 

appeals  receivership  cases,  §  1502. 
injunctions,  §  1502. 

judges,  powers  and  duties  on  appeal,  §  1510. 
receivership,  §  1502. 
writ  of  error, 

Alaska  district  court,  §§  1505,  1506. 

China,  United  States  court,  §  1504. 

district  court,  §  1501. 

APPELLATE  JURISDICTION  OP  THE  SUPREME  COURT,  ch.  73. 
Alaska,  appeal  and  error,  §  1561. 
appeal,  see  that  heading, 
bankruptcy  appeals,  §  1561. 

certification  from  circuit  court  of  appeals,  §  1559. 
oertiorari  to  circuit  court  of  appeals,  §  1559. 
circuit  court  of  appeals,  appeal  and  error,  §  1559. 
constitution,  cases  involving  construction,  §  1555. 
constitutionality  federal  law  or  treaty,  §  1556. 
court  of  claims,  appeals  from,  §  1560. 
district  court,  appeal  direct,  §  1551. 

District  of  Columbia  court  of  appeals,  appeal  and  error,  §  1561. 
federal  laws  drawn  in  question,  §  1556. 

Hawaii,  appeal  and  error,  §  1561.  % 

jurisdiction,  what  is  question  of,  §  1552. 

jurisdiction,  rules  determining  between  circuit  court  of  appeal?  anrt  Su- 
preme Court,  §  1553. 
jurisdiction    under,  §  238,   Jud.   Code,  §  1508. 


INDEX.  1053 

APPELLATE  JURISDICTION  OF  THE  SUPREME  COURT  (Continued). 
mandamus  to  revise  and  correct  proceedings  of  lower  courts,  1 1562. 
Philippine  Islands,  appeal  and  error,   9  156L 
Porto  Rico,  appeal  and  error,  §  1561. 
prize  cases,  §  1554.       »•  „• 

questions  involved  under,  §  238,  Jud.  Code,  §  1508. 
state  law  contravening  constitution,  §  1557. 
territory,  after  admission,  §  1561. 
treaty  drawn  in  question,  §  1556. 
writ  of  error,  see  that  heading.. 

APPELLATE  PROCEDURE  AT  LAW,  see  Appeal  and  Error,  ch.  75. 
APPELLATE  PROCEDURE  IN  EQUITY,  see  Appeal  and  Error,  ch.  75. 
APPELLATE  REVIEW  STATE  COURT  DECISIONS,  ch.  74. 

APPELLEE  to  file  precipe  indicating  additional  portions  of  record  on  appeal, 
Eq.  R.  75,  §  1671. 

APPENDIX,   contents   of,  p.   657. 

APPLICATION, 

habeas  corpus,  how  made,  §  1334. 

writs  of  certiorari  under  §  240  Judicial  Code,  Addenda,  Role  45  C.  0.  A. 
Appendix. 

APPLICATIONS, 

gran  table  of  course, — by  clerk,  Eq.  R.  5,  9  823. 
masters  in  chancery,  9  1060. 

APPOINTMENT, 

and  compensation  of  masters,  Eq.  R.  68,  9  1060. 
and  fees  of  stenographers,  Eq.  R.  50,  9  1044. 
revocation  of,  of  outside  judges,  9  22. 

assistant   district  attorneys,  9  34. 

judicial    officers — disqualification    for,  9  27. 

APPOINTMENT  OF  DISTRICT  JUDGE, 
accumulation  of  business,  9  22. 
change  of,  9  22. 
disability  of  incumbent,  9  22. 

APPRAISAL, 

fees  of  appraisers  on  execution  sale.  5  42ft. 
personal  .property  on  execution,  §  644, 


1054  INDEX. 

APPRAISERS, 

board  of  general,  §  1451. 
fees  on  execution  sales,  §  429. 

ARBITRATION,  common  carriers  and  employees,  jurisdiction  district  court, 
§113. 

ARGUMENT  LISTS,  rule  18,  3d  circuit  under  Rule  17  C.  C.  A.  Appendix. 

ARGUMENTS, 

circuit  court  of  appeals,  Rule  25  C.  C.  A.  Appendix. 

Rule  19  C.  C.  A.  (3d  Circuit)  Appendix. 

Rule  23  C.  C.  A.  (6th  Circuit)  Appendix. 

Rule  41  C..  C.  A.  (8th  Circuit)  Appendix, 
printed,  circuit  court  of  appeals,  form  of,  Rule  26  C.  C.  A.  Appendix. 

ARIZONA,  districts,  terms  and  places  of  holding  court,  act  Oct.  3,  1913,  c.  1, 
following  §  71"  "Jud.  Code,  Appendix. 

ARKANSAS,  districts,  terms  and  places  of  holding  court,   §  71,  Jud.  Code, 
Appendix. 

ARRAIGNMENT  AND  TBIAL,  ch.  65. 

ARREST, 

discharge  from,  conforms  to  state  laws,  §  637. 

extradition,  fugitive  from  foreign  country,  §  1300. 

offenders  against  United  States,  §  1260. 

prisoner  to  be  taken  to  nearest  judicial  officer,  §  1261. 

seamen  deserting  foreign  vessel,  §  108. 

same,  jurisdiction  district  court,  §  109. 

ARREST  AND  BAIL,  ch.  62. 

ASSIGNMENT, 

eases  for  hearing,  circuit  court  of  appeals,  Rule  35  C.  C.  A.  (5th  and  9th 

circuit)  Appendix, 
district  judges. 

accumulation  of  business,  §  22. 

change  of,  §  27. 

circuit  judge  for  district  judge,  §  23. 

disability  of  incumbent,  §  22. 
errors,  §  1661. 

errors  circuit  court  of  appeals,  Rule  13  C.  C.  A.  Appendix, 
judges  circuit  court,  of  appeals,  Rule  36  C.  C.  A.  (5th  Circuit)    Appendix, 
jurisdiction  of  district  court  by,  §  97. 


INDEX.    %  105.3 

ASSIGNMENT  OF  ERRORS,  form  of,  fi  1662. 

transcript  of,  on  appeal  or  error,  §  1669a. 

\ 

ASSISTANCE,  WRIT  OP, 

clerk  to  issue,  on  refusal  to  obey  decree  for  delivery  of  possession,  Eq.  R.  9, 

§  1143. 

on  refusal  to  obey  decree  for  delivery  of  possession,  Eq.  B.  9,  5  1143. 
when  to  issue,  Eq.  B.  7,  j  1112. 

ASSISTANT, 

see   also   deputy, 

clerks,  court  of  customs  appeals,  J  1454. 

district  attorneys,  §  34. 

marshal  Supreme  Court,  8  1530. 

ASSOCIATE  JUSTICES,  Supreme  Court,  order  of  precedence,  §  1530. 

ATTACHMENT,  eh.  17. 

affidavit,  amendment  of,  §  487. 

affidavit  of  plaintiff  of  noncompliance  with  decree,  Eq.  B.  8,  §5  473,  1112, 

1140,  1143. 

conforms  to  state  law,  5  486. 
bond,  $  488. 

causes  of  action  governed  by  state  law,  §  484. 
delivery  bond,  9  491. 
dissolution  of,  §  494.  . 

for  noncompliance  with  decree,  Eq.  B.  8,  §S  473,  1112,  1140,  1148w 
law  actions,  §  452,  eh.  17. 
lien,  §  490. 
may  issue  for  failure  to  answer  interrogatories  or  to  produce  documents, 

Eq.  R.  58,  §§  270,  670,  940. 
national  banks  exempt,  5  480. 
not  to  be  discharged  until  full  compliance  with  decree,  etc.,  Eq.  B.  8, 

SS  473,  1112,  1140,  1143. 
postal  suits,  §  495, 

application  for  warrant,  (  498. 

discharge  of  warrant,  §  502. 

doers  not  affect  adoption  of  state  laws,  I  503. 

issuing  warrant,  8  497. 

ownership  of  property,  trial,  §  498. 

proceeds  of  sale,  investment,  §  499. 

publication  of  warrant,  §  500. 
priorities  of  'several,  §  490. 

property  subject  to,  governed  by  state  law,  §  485. 
provisional  remedy  only,  §  613. 
substituted  service  cannot  be  based  upon,  §  483. 


1056  -  INDEX. 

ATTACHMENT  (Continued). 

state  laws,  adoption,  §§  480,  481. 
state  laws,  construction  followed,  §  482. 
third  party  claims,  §  493. 
writ,  amendment,  §  489. 

ATTACKS,  see  Objections. 

ATTENDANCE, 

depositions  dc   bene  esse,  witnesses,  §  378. 

to  be  used  in  foreign  country,  witnesses,  §  394. 
under  commission,  witnesses,  §  386. 
under  commission,  exemption  from,  of  witnesses,  §  385. 
enforcing  of  witness'  deposition  de  bene  esse,  §  378. 
under  commission,  §  386. 

deposition  to  be  used  in  a  foreign  country,  §  394. 
exemption  of  witness,  deposition  under  commission,  §  385. 
of  witnesses  before  commissioner,  master  or  examiner,  Eq.  R,  52,  §  390. 
witness, 

deposition   de  bene  esse,  §  378. 
for  foreign  country,  §  394, 
under  commission,  §  386. 
enforcing  generally,  §  346. 

claim  in  departments,  §  355. 
interstate  commerce  act,  §  357. 
patent  cases,  §  352. 

exemption  from  deposition  under  commission,  §  385. 
for  the  United  States,  §  344. 
subpoena  for,  see  Subpoena. 

ATTORNEYS, 
admission    of, 

circuit  court  of  appeals,  Rule  7  C.  0.  A.  Appendix. 

court  of  claims,  §  1430. 

district  court,  §  56. 

Supreme  Court,  §  1532. 
civil  rights  cases,  fees  of,  §  414. 
fees  of,  §  409. 

war  risk  insurance  claims,  §  1724. 
liability  for  costs  vexatiously  increased,  §  410. 

AUTHORITY, 

removal  by  writ  of  error  decision  in  state  court  against  validity  of, 

§  1605. 
removal  by  writ  of  error  to  state  court  of  decision  against  right,  title, 

privilege,  or  immunity  claimed  under  federal,  §  1607. 


INDEX. 
AVERMENTS  of  bill,  if  not  denied,  deemed  confessed,  except,  etc.,  Eq.  B. 

AWARDS  OF  CONSULS,  appellate  jurisdiction  diBtrict  court,  §  108. 

B. 

BAIL,  ch.  62. 

admitted,  capital  cases,  when,  §  1264. 

admitted  in  cases  not  capital,  §  1263. 

calling  in  Kentucky,  9  1276. 

committing  defendant  who  has  given  such  in  another  district,  9  1274. 

criminal  cases  removed  by  writ  of  error  from  state  court,  g  1265. 

custom  laws,  property  seized,  §  1707. 

de  bene  esse  by  clerks  in  absence  of  judges,  §  1277. 

error  proceedings,  Rule  15  C.  C.  A.  (3d  Circuit)    Appendix. 

holding  defendant  until  final  judgment  in  first  suit,  §  1275. 

new,  as  better  security,  §  1267. 

offenders  against  United  States,  §  1260. 

photograph  of  Chinese  to  be  attached  to  bond,  Rule  37  C.  C.  A.  (9th 

Circuit)    Appendix, 
special,  suits  for  duties,  §  1273. 
surrender  of,  §  1266. 
writ  of  error  criminal  case. 

circuit  court  of  appeals,  Rule  35  C.  C.  A.  (2d  Circurt)    Appendix. 

BAILIFFS,  district  courts,  §  32. 

BANKRUPTCY, 

appeal  8th  circuit,  Rule  45  C.  C.  A.  Appendix. 

appeals  to  Supreme  Court,  5  1561. 

circuit  court  of  appeals,  supervisory  jurisdiction,  5  1503. 

demurrers  abolished  in,  §  881. 

master's  report,  §  1074. 

writ  of  error,  8th  Circuit,  Rule  45  C.  C.  A.  Appendix. 

BANKS,  NATIONAL, 

see  also  National  Banks. 

diverse  citizenship  of,  §  147. 

exception  as  to  involving  federal  question.  §  123. 

federal  question  not  ipso  facto  involved,  9  123k 

BETTER  STATEMENT, 

bill  of  particulars,  §  921. 
see  Bill  of  Particulars,  §  922. 
Manual — 87 


1058  INDEX. 

BIAS  OF  JUDGE  DISTRICT  COUET, 
designation  of  another  judge,  §  25. 
removal  of  causes  for,  §§  191,  200, 
procedure,  §  200  et  seq. 
provisional  remedies  preserved,  §  218. 
remanding,  §§  201,  202,  215. 
return  of  record,  §  215. 

BIGAMY,  challenges  in  prosecutions  for,  §  1368. 

BILL,  ch.  28. 

allegations  of,  §§  690,  692. 

amended,  answer  to,  Eq.  K.  32,  §  668. 

amendment  as  of  course,  Eq.  B.  28,  ch.  31. 

amendment  not  allowed  after  defendant's  pleading  except,  etc.,  Eq.  R. 

28,  ch.  31. 

amendment  of,  on  suggestion  of  defect  in  parties,  Eq.  B.  43,  §  762. 
amendment,  * 

death  of  party,  §  763. 

defect  in  parties,  §  762. 
amended,  time  for  answer,  f  668. 
amount  in  controversy,  statement  of,  §  175. 
averments  of,  if  not  denied,  deemed  confessed  except,  etc.,  Eq.  B.  30, 

§964. 

caption  of,  §  693. 
cause  of  action  in,  §  898. 
citizenship  of  parties  in,  §  694. 

constitutional  question  must  appear  on  face  of,  §§  123,  128. 
contents  of,  §  692. 

damages,  averments  as  to,  Eq.  B.  30,  §  964. 
default,  Eq.  B,  16,  §  811. 

differences  between  state  and  federal  statement  of  cause,  §  691. 
disability  of  party  to  be  stated  in,  §  694. 
dismissal  for  failure  to  produce  documents,  Eq.  E.  58,  §  940. 

on  answer  as  a  plea  sustained,  §  904. 
Equity  Eule  25,  §  692. 

sub.  first,  §  694. 

sub.  second,  §  695. 

•ub.  third,  §  695. 

sub.  fourth,  §  697. 

sub.  fifth,  §  698. 

Evidence  not  to  be  stated  in,  Eq.  B.  25,  §  696. 
Exceptions,  to  for  scandal  and  impertinence  shall  not  obtain,  Eq.  R.  21, 

eh.  42,  §§812,  820,  96S. 


INDEX. 

BILL    (Continued). 

facts  to  be  stated  in,  Eq.  B.  25,  ch.  26,  §5  692,  893. 

federal  question  must  appear  on  face  of,  §5  125,  128. 

grounds  of  jurisdiction,  statement  of,  §  695. 

hearing  on  answer  and,  §  969. 

issuing  process  on,  §  791. 

interrogatories  attached  to,  see  Interrogatories,  5  951. 

joinder  of  causes  of  action,  Eq.  B.  26,  ch.  30. 

joint  and  several  demands,  §  723. 

jurisdictional  ground  to  be  stated  in,  Eq.  B.  25,  $  695. 

jurisdiction,  statement  of  grounds  of,  §  695. 

may  be  dismissed  for  failure  to  answer  interrogatories  or  produce  do«o- 

ments,  Eq.  B.  58,  §  940. 
may  be  taken  pro  confesso  if  answer  not  filed,  etc.,  Eq.   B.    12,55810 

963. 

multifariousness  and  misjoinder,  ch.  30. 
of  complaint,  contents,  Eq.  B.  25,  §  692. 

of  revivor  and  supplemental  bills,  what  necessary  in,  Eq.  B.  35,  ca.  33. 
parties, 

citizenship  and  residence,  5  694. 

defect  in,  §  762. 

stockholder,  §§  740,  742. 
prayer,  §  698. 

residence  of  parties,  §  694. 
state  practice,  differences  from  federal,  5  691. 
statement  of  cause  of  action,  §  696. 
statement  ground  jurisdiction,  5  695. 
signing  bills,  §  699. 
stockholder's  suit,  Eq.  B.  27,  §  740. 
subpoena,  proper  mesne  process  to  compel  appearance  and  answer  t», 

Eq.  B.  7,  §  790. 

supplemental,  what  necessary  in,  Eq.  B.  35,  ch.  S3. 
to  be  signed  by  solicitors,  Eq.  B.  24,  5  699. 

treaties,  questions  arising  under,  must  appear  on  face  of,  55  125,  12*. 
value,  allegations  of,  not  confessed,  Eq.  B.  30,  5  964. 
verification,  before  whom,  Eq.  B.  36,  5  700. 
verification  of,  on  application  for  preliminary  injunction,  etc.,  Eq.  B.  73, 

S  1103. 
when  filed,  clerk  to  issue  subpoena,  Eq.  B.  12,  5  791. 

BILL  IN  EQUITY,  ch.  28.     See  heading  Bill 

BILL  OF  COSTS,  see  Costs  and  Fees,  55  401,  40* 
verification  of,  5  403. 


1060  INDEX. 

BILL  OF  EXCEPTIONS,  ch.  26. 

authentication  and  signing,  §  814. 

circuit  court  of  appeals,  Rule  10  C.  C.  A.  Appendix. 

contents  of,  §  614. 

signing,  §  614. 

BILL  OF  PAKTICULABS. 
Eule  29,  $  921. 
discretion  of  court,  §  922. 
expert  testimony  not  required  in,  5  923. 
inspection  not  to  be  substituted  by,  S  923. 
interrogatories  not  to  obtain,  §  944. 
issue,  to  narrow  it,  §  924. 

BILL  OF  REVIEW,  ch.  58. 
form  of,  S  1182. 
function  of,  S  1180. 
leave  of  court,  §  118L 
time  for  filing,  {  1181. 

BOARD  OF  GENERAL  APPRAISERS,  §  1471. 

BOND, 

appeal,  {  1684. 

none  required  of  United  States,  §  1665. 
attachment,  S  488. 
clerk,  §  28. 

clerk  Supreme  Court,  §  1530. 
contracts  and  other  papers  of  United  States  in  settlement  of  accounts 

with  government,  copies  as  evidence,  §  290. 

costs,  circuit  court  of  appeals,  Rules  12  and  45  C.  C.  A.  Appendix, 
delivery  in  attachment,  §  492. 
diverse  citizenship,  removal  of  cause,  §  196. 
federal  question,  removal  of  causes,  §  196. 
form  of  superseded*  or  cost  bond  8th  circuit  Addenda,  Rule  45  C.  C.  A. 

Appendix. 

marshal  district  court,  §  29. 
on  order  suspending,  etc.,  injunction  pending  appeal,  Eq.  R.  74,  §§  1107, 

1667. 

removal  of  classes  1,  2,  3,  §  196. 
removal,  bond  of  state  court  preserved,  §  216. 
separable  controversy,  removal  of.  §  196. 

gupersedeas,  circuit  court  of  appeals,  Rule  13  C.  C.  A.  Appendix, 
temporary  restraining  order,  $  1102. 
writ  of  error,  §  1664. 


INDBX.  1061 

BOOKS, 

clerk    to    keep    equity  docket,  order  book,  equity  journal,  Eq    E    3 

Appendix. 

deposition  under  commission,  production  of,  |  387. 
motion  and  notice  to  produce,  9  572. 

papers,  etc.,  production  of,  required  by  master,  Eq.  B.  62,  |  1063. 
production  of,  on  deposition  under  a  commission,  |  387. 

BOUND  COPIES  of  acts  as  evidence,  98  278,  279. 

BRIEFS, 

circuit  court  of  appeals,  Rule  24  C.  C.  A.  Appendix. 
Rule  20  C.  C.  A.  (6th  Circuit)  Appendix. 
Rule  21  C.  C.  A.  (6th  Circuit)  Appendix. 
Rule  26  C.  C.  A.  Appendix. 
Rule  41  C.  C.  A.  (8th  Circuit)  Appendix. 

BURDEN  OF  PROOF, 

court  of  claims,  9  1434. 

seizure  cases  under  customs  duties  laws.  §  308. 

BUREAU  OF  WAR  RISK  INSURANCE,  actions,  |  1724, 
attorney's  fees,  9  1724. 
judgments,  9  1724. 
jurisdiction,  9  1724. 

BUSINESS, 

accumulation  of,  how  disposed,  9  22. 
distribution  of,  9  21. 

0. 

CALENDAR,  ch.  49. 

case  on  after  term,  for  decree,  9  1033. 

circuit  court  of  appeals,  Rule  17  C.  C.  A.  Appendix. 

Rule  18  C.  C.  A.  (3d  Circuit)    Appendix. 

Rule  22  C.  C.  A.  (6th  Circuit)  Appendix. 

under  Rule  17  C.  C.  A.  Appendix, 
court  of  customs  appeals,  9  1456. 
equity,  reinstatement  of  case,  9  879. 

trial  calendar,  9  676. 
trial  case  goes  on,  when,  Eq.  R.  56,  91  877.  1030. 

CALIFORNIA,  districts,  terms  and  placet  of  holding  court,  |  72,  Jud.  Code, 
Appendix. 


1062  INDEX. 

CANAL  ZONE,  appellate  jurisdiction  5th  Cir.,  §  1507. 
trading  with  the  enemy,  §  1720. 

CANALS,  jurisdiction  district  court  to  remove  obstructions,  §  102 

CAPITAL  CRIMES, 

see  Criminal  Procedure. 

accused  entitled  to  counsel  and  to  compel  witnesses,  §  1364. 

statute  of  limitations,  §  231. 

CAPITAL  OFFENSES,   venue,  §  75. 
CAPTION,  bill  in  equity,  §  693. 
CARRIER,  see  Common  Carrier. 

CAUSE, 

advancement  of,  Eq.  R.  6,  §  822. 

conduct  of,  E'q.  R.  6,  §  821. 

frivolous,  imposition  of  costs  on  exceptions  to  master's  report,  Eq.  R.  67, 

§  1070. 

hearing  of,  Eq.  R.  6,  §  821. 
issue,  when  at,  Eq.  R.  31,  §  669. 
joinder,  Eq.  R.  26,  ch.  30. 

notice  of  interlocutory  orders  for,  Eq.  R.  6,  §  822. 
reinstatement  of,  Eq.  R.  57,  §§  678,  679. 

speeding  on  motion  to  set  aside  decree  pro  confesso,  Eq.  R.  17,  §  813. 
trial  calendar,  Eq.  R.  56,.§  677. 

CAUSE  OF  ACTION, 
attachment,  §  484. 
bill  in  equity,  allegation  of,  §  696. 
insufficient,  motion  to   dismiss,  §  891. 
insufficiency  of,  raising  issue  in  answer,  §  903. 
joinder,  legal  and  equitable,  §  473. 
joinder  of,  Eq.  R.  26,  ch.  30. 

CERTAINTY, 

answer  in  equity,  motion   for,  §§  968,  920. 

further  and  better  statement  may  be  ordered,  Eq.  B.  20,  ch.  41,    §§  812, 

968. 

motion  for,  equity,  §  920. 
see  Bill  of  Particulars,  §  924. 

CERTIFICATE,  signature  of  counsel  to  pleading  to  be  considered  as,  E'q.  R. 
24,  §  699. 


INDEX.  1063 

CERTIFICATION, 

circuit  court  of  appeals  te  Supreme  Court,  }$  1559,  1979. 
District  of  Columbia,  court  of  appeals  of,  9  1683. 
error,  question  of  law,  S  1677. 

CERTIORABI, 

see  Writg  of  Certiorari. 

Alaska  cases,  ninth  circuit  to  Supreme  Court,  1 1684. 

circuit  courts  of  appeals,  review  of  decisions  by,  9  1677. 

congressional  officers,  removal  of  cases  against,  |  212. 

error  proceedings,  §  1677. 

jurisdiction  under,  §  237,  Jud.  Code,  §  1601. 

removal  of  causes  against  congressional  and  revenue  officers,  |  212. 

revenue  officers,  removal  of  causes  against,  §  212. 

review  of  judgment  by,  9  1650. 

Supreme  Court  to  circuit  court  of  appeals,  |  1559. 

CHALLENGES, 
see  also  Jury, 
jury,  law  actions,  9  593. 
peremptory  in  criminal  cases,  1 1368. 

CHAMBERS,  awarding  process,  commissions,  orders,  rules,  ate.,  by  judge 

at,  Eq.  R.  1,  9  822. 
orders  in,  9  53. 

CHANGE  OF  VENUE,  stipulation  for,  9  6«. 

CHARGE  to  be  identified  but  not  stated  in  master's  report,  Eq.  R.  67,  f  1070. 

CHARGE  TO  JURY, 
law  actions,  9  461. 
trial,  9  599. 

CHIEF  JUSTICE,  Supreme  Court,  f  1530. 

CHINA,  appeal   and   error  from   United  States  court  to   circuit   court  of 
appeals,  9  1504. 

CHINESE  EXCLUSION  LAWS, 

district  court  jurisdiction,  9  104. 

fees  United  States  commissioners,  9  418% 

CIRCUIT  COURTS  OF  APPEALS,  9  1470,  ch    70. 
appeals  from  district  courts,  time  for,  9  1653. 


1064  INDEX. 

CIRCUIT  COURTS  OF  APPEALS  (Continued). 

appeal  to  Supreme  Court,  time  for,  §  1655. 

appeals  to,  from  interlocutory  orders,  time  for,  §  1654. 

appeal  to  Supreme  Court,  §  1559. 

appellate  jurisdiction,  see  Appellate  Jurisdiction  Circuit  Court  of  Ap- 
peals, ch.  71. 

certification  by,  to  Supreme  Court,  §  1678. 

certiorwi,   review  of   decisions   by,  §  1677. 

circuits  of,  §  1470. 

clerks,  §  1471. 

death  of  party  pending  appeal  to,  §  1692. 

deputy  clerks,  §  1471. 

districts   included   in    circuits   of,  §  1470. 

filing  and  printing  record  on  appeal,  §  1671. 

if  appeal  lies  to,  rehearing  not  granted  after  term,  Eq.  R.  69,  §  1160. 

judges,  §  1471. 

marshals,  §  1471. 

officers  of,  §  1471. 

organization,  §  1471. 

printing  record  on  appeal,  §  1671. 

procedure,  appeal  to,  §  1657. 

procedure,  rules  of,  §  1473,  set  out  in  Appendix,  p.  845. 

quorum,  §  1471. 

record  used  in  transcript  to  Supreme  Court,  §  1673. 

rules  of   procedure,  §  1473,  Appendix,  p.   845. 

rules,  Appendix,  p.  845  et  seq. 

table  of  rules  quoted  or  cited,  Appendix,  p.  1034. 

terms,  §  1472, 

time  for  appeal, 

from  district  courts,  §  1653. 
from  orders,  §  1654. 

to  Supreme  Court,  §  1559. 

writ  of  error,  see  that  heading,  ch.  75. 

writ  of  error  from  district  court,  time  for,  §  1653. 

writ  of  error  to  Supreme  Court,  §  1559. 

writs,  power  to  issue,  §  1100. 

CIRCUIT  JUDGE,  acting  as  district  judge,  §  23. 

may  dispense  with  motion  day  if  public  interest  permits,  Eq.  R.  6,  5  821 

CITATION,  appeal,  §  1663. 

form  of,  8th  circuit,  Addenda,  Rule"  45  C.  C.  A.  Appendix, 
writ  «f  error,  §  1663. 


INDEX.  10G3 

CITATION  OF  AUTHORITIES,  circuit  court  of  appeals  Rule  37  CL  C.  A. 

(2d  and  4th  circuits)  Appendix. 

CITIZENS, 

removal  of  causes,  diverse  citizenship,  §  191. 

land  grants,  §  205. 
Supreme  Court,  suits  between  state  and,  9  1534. 

CITIZENSHIP, 

see  Diverse  Citizenship. 

bill  in  equity,  allegation  of,  §  694. 

change  of,  as  affecting  jurisdiction,  9  156. 

federal  question  does  not  involve,  5  127. 

name  and  residence  of  each  party  must  be  stated  in  bill.  Eq.  R.  25,  |  C94. 

venue,  affected  by,  in  cases  involving  federal  question,  9  127. 

CIVIL  BIGHTS,  habeas  corpus  in  removal  of  causes,  §  ^08. 

CIVIL  RIGHTS  LAWS, 

conspiracy  against,  statute  of  limitations,  §  249. 
exemptions  of  jury,  §  585. 

penalty  for  exclusion,  §  586. 
fees,  attorneys,  clerks,  marshals,  §  414. 
remanding  cases  fraudulently  or  improperly  removed,  9  215. 
removal  of  causes,  5  207. 

CIVIL  SUITS,  venue  of,  in  general,  §  61* 

CLAIM,  further  and  better  statement  of  nature  of,  may  be  ordered,  Eq.  R.  SO, 
eh.  41,  §§  812,  968. 
before  master  examinable  by  him,  Eq.  R.  65,  S  1063. 

CLAIMANT,  examination  of,  court  of  claims,  {  1434. 

CLAIM  TO  PROPERTY  IN  ALIEN  CUSTODIAN, 
limitation  of  attachment  of,  9  513. 

CLAIMS, 

aliens  in  court  of  claims,  9  1432. 

court  of  claims,. §  1432. 

abandoned  property  against  government,  exceptions,  9  1432. 
aliens,  9  1432. 

pending  elsewhere,  excepted,  9  1432. 
proceeds  abandoned  property,  §  1432. 
railroad  companies,  court  of  claims,  5  1432. 
referred  by  Congress  to  court  of  claims,  §  1432 
referred  by  departments  to  court  of  claims,  9  1432. 
statutes  of  limitations,  9  243. 
witnesses,  enforcing  attendance  and  testimony  before  department*,  I1 

355. 


1066  INDEX. 

CLASS,  representatives  of,  may  sue  or  defend,  Eq.  R.  38,  §  715. 

CLERK, 

assistant,  court  of  customs,  appeals,  §  1452. 

bail  de  bene  esse,  §  1277. 

circuit  court  of  appeals,  Rule  5  C.  C.  A.  Appendix,  §  1471. 

court  of  customs  appeals,  §  1531. 

books  of,  equity  docket,  equity  journal  and  order  book,  Eq.  B.  3,  Appendix. 

district  court,  §§  27,  28. 

duties  of,  Eq.  B.  2,  Appendix. 

fees  of,  §  412. 

civil  rights  laws,  fees  of,  §  414. 
motions,  Eq.  R.  2,  Appendix, 
motions  grantable  of  course  by,  Eq.  B.  5,  §  823. 

office  of — awarding  of  process  commissions,  orders,  rules,  etc.,  by  judge 
at,  Eq.  B.  1,  §  822. 

master  to  return  report  into,  Eq.  B.  66,  §  1070. 
•i  statement  on  appeal  to  be  filed  in,  Eq.  R.  75,  §  1671. 

temporary  restraining  orders  to  be  filed  in,  Eq.  B.  73,  §  1106. 

when  open,  Eq.  B.  2,  Appendix. 

orders  made  without  notice,  mailing  of,  E>q.  B.  4,  §  825. 
Supreme  Court,  §  1530. 

liability  of  clerk  for  misfeasance  of  deputy,  §  1530. 
to  grant  as  of  course,  motions  and  applications  not  requiring  order  of  court 

or  judge,  Eq.  B.  5,  §  823. 

to  issue  subpoena  when  bill  filed,  and  not  before,  Eq.  B.  12,  §  661. 
to   issue  writ   of   assistance   on    refusal   to   obey    decree   for    delivery   of 

possession,  Eq.  B.  9,  §  1143. 

to  send  copies  of  interrogatories  to  solicitors  of  record,  Eq.  B.  58,  §  940. 
verification  of  pleadings  before,  Eq.  B.  36,  §  700. 
writ   of   error,   may   issue,  §  1660. 


CLERKS  NEW  RECORDS  IN  CERTAIN  STATES, 
copies  as  evidence,  §§  304,  306. 

CLOUD  ON  TITLE,  venue,  §  57,  Jud.  Code,  §  66. 
COAST  DEFENSES,  condemnation  of  land  for,  §  1727. 

CODE,  construction  of,  §  1700. 

judical,  Appendix,  p.  661  et  seq. 

table  of  sections  quoted  or  cited,  Appendix,  p.  1029. 

COLORADO,  districts,  terms  and  places  of  holding  court  in,  §  73,  «Tnd.  Code, 
Appendix. 


INDEX.  1067 

COMMERCE  AND  LABOR,  judicial  notice  of  seal,  |  307. 

COMMERCE  LAWS, 

enforcing  attendance  and  testimony  of   witnesses  under  interstate  com- 
merce act,  §  357. 

immunity  of  witnesses  under,  §  354. 
interstate  commerce  act,  see  that  heading, 
testimony,  enforcing  under  interstate  commerce  act,  5  357. 
venue  of  suits  affecting  orders  Interstate  Commerce  Commission,  9  82. 
witnesses,  attendance  and  testimony  under  interstate  commerce  act,  §  357. 
witnesses,  immunity  of,  under,  §  335. 

COMMISSION, 

see  Depositions  under  Commission,  §  384. 

removal  by  writ  of  error  to  state  court  of  decision  against  right,  title, 
privilege,  or  immunity  claimed  under  federal,  $  1607. 

COMMISSIONER, 

attendance  of  witnesses  before,  Eq.  R.  52,  §  390. 

Chinese  exclusion  laws,  fees  of,  $  416. 

depositions  before,  §  390. 

district  court,  §  35. 

fees  of,  §  415. 

notice  of  depositions  before,  §  391. 

COMMISSIONER  OF  INDIAN  AFFAIRS, 
certification  of  copies  as  evidence,  §  299. 

COMMISSIONS,  award  of,  by  judge  at  chambers,  Eq.  R,  1,  8  822. 

COMMITMENT, 

defendant  who  has  given  bail  in  another  district,  f  1274. 

discharge   in   extradition   cases,  §  1310. 

seamen  by  district  court  on  application  of  foreign  consul.  {  109. 

COMMON  CARRIERS,  removal  of  causes,  employer*'  liability  cue*  are  not 
removable,  §  204. 

COMMON-LAW  ACTIONS,  see  Law  Actions. 
COMPENSATION,  masters  in  chancery,  8  1060,  Eq.  R.  68. 

COMPETENCE, 

anti-trust  laws,  immunity  of  witnesses  under,  §  335. 
commerce  laws,  immunity  of  witnesses  under,  5  335. 
Congress,  immunity  of  witnesses,  testifying  before,  5  338. 


1068  INDEX. 

COMPETENCE  (Continued). 

criminal  cases,  immunity  of  witnesses  in,  §  335. 

defending  as  a  witness  in,  §  338. 
customs,  revenue  laws,  witnesses  not  disqualified  by  claiming  compensation 

under,  §  333. 

defendant  as  witness  in  criminal  proceedings,  §  338. 
determined  in  general  by  state  laws,  §  330. 

fines,  officers  and  informers  not  disqualified  as  witnesses  in  suits  for,  §  334. 
forfeitures,  officers  and  informers  not  disqualified  as  witnesses  in  suits  for, 

§334. 

immunity  of  witnesses,  §§  335,  336. 
informers   not   disqualified    as    witnesses   in    suits   for   fines,   penalties,   or 

forfeitures,  §  334. 
officers   and   informers  not    disqualified   as  witnesses   in   suits   for   fines, 

penalties,  or  forfeitures,  §  334. 
penalties,  officers  and  informers  not  disqualified  as  witnesses  in  suits  for, 

§334. 

perjury  does  not  disqualify  witness,  §  332. 
revenue  laws,   witness   not   disqualified  by   claiming   compensation   under, 

§333. 

state  laws  determine,  §  330. 
testimony,  see  that  heading, 
witnesses,  see  above  and  that  heading,  ch.  12. 

COMPETENCY,  etc.,  of  questions  asked  before  examiner  not  to  be  decided  by 
him,  Eq.  B.  51,  §  381. 

COMPLAINT, 

see  Initial  Pleading. 

bill,  ch.  26. 

differences,  federal  and  state,  §  691. 

law  action,  form  of,  §  474. 

COMPLETE  STATEMENT,  bill  of  particulars,  §  921. 

COMPTROLLER  OF  THE  CURRENCY, 

copies  of  records  as  evidence,  §  288. 
injunctions  against,  venue,  §  73. 

COMPULSORY  ATTENDANCE,  see  Attendance. 
COMPULSORY  PROCESS,  see  Process. 

COMPULSORY  TESTIMONY,  see  Testimony. 

\ 
COMPUTATION  OF  TIME— Sundays  and  holidays,  Eq.  T?.  80.  Appendix. 


INDEX.  1069 

CONCURRENT  JURISDICTION,  of  district  and  state  courts,  |{  90,  98. 

CONDEMNATION, 

coast  defenses,  land   for,  §  1727. 
food   products  and   fuel,  §  1725. 
fortifications,  land  for,  §  1727. 
harbor   inprovements,  §  1728. 
insurrectionary  property,  venue,  §  78. 
land   for  military   purposes,  §  1727. 
military   purposes,   for,  §  1727. 
military   camps,   land    for,  §  1727. 

CONDUCT  OP  CAUSES,  notice  of  interlocutory  orders  for.  Eq.  R.  6.  5  822. 
CONFERENCE  DAY,  Saturday,  Rule  35  C.  C.  A.  (4th  Circuit)  Appendix. 
CONFESSION  AND  AVOIDANCE,  reply  not  required  to  matter  of,  f  1011. 

CONFINEMENT, 

juvenile  offenders  under  sixteen  in  house  of  refuge,  §  1339. 
juvenile  offenders  separate  from  prisoners  over  twenty,  9  1388. 
state  jail  or  penitentiary  when  use  of,  so  allowed  by  state  law.  f  1386. 
same,  where  nonavailable,  attorney  general  may  designate,  §  1387. 
same,  transportation  of  prisoners  to  place  of  imprisonment,  9  1388. 

CONFORMITY  STATUTES,  §  57. 

CONFORMITY  TO  STATE  LAWS, 
see  Law  Actions,  §  7,  ch.  15. 
allowance  of  interest  on  judgments,  §  623. 
appraisal  of  personal  property  on  execution  sal*.  9  644. 
arrest,  discharge  from,  in  civil  actions,  $  637. 
attachments,  law  actions,  58*80,  481. 
defensive  pleading  at  law  to  state  practice,  ch.  19. 
discharge  from  arrest  in  civil  cases,  $  637. 
executions  at  law,  §  631. 
garnishment  law  actions,  8§  480,  481. 
imprisonment /or  debt,  modifications.  §  636, 

discharge  from,  in  civil  cases,  |  637. 
judgments  law  actions,  §  622. 
lien  of  judgment,  9  627. 
levy  of  judgments,  9  623. 
rate  of  interest  on  judgments,  9  629. 
record  of  judgment,  9  625. 

sale  of  personal  property  on  execution,  appraisal.  |  644. 
"stay  of  execution  for  one  term,  9  634. 


1070  INDEX. 

CONGRESS, 

claims  referred  by,  §  1432. 

evidence  from,  in  court  of  claims,  §  1434. 

immunity  of  witnesses  testifying  before,  §  339. 

CONGRESSIONAL  CHARTERS,  federal  question,  do  not  now  raise,   9!  122, 
123. 

CONGRESSIONAL  JOURNAL,  extracts  from,  as  evidence,  §  276. 

CONGRESSIONAL  OFFICERS, 

certiorari  in  removal  cases,  §  212. 

habeas  corpus  in  removal  cases  against,  §  212. 

removal  of  causes  against,  class  eight,  §  209. 

CONNECTICUT,  districts,  terms  and  places  of  holding  court  in,  i  74,  Jud. 
Code,  Appendix. 

CONSOLIDATION, 
cases,  §  570. 
costs  and  fees,  §  407. 
indictments,  §  1243. 
law  actions,  §  457. 

CONSTITUTION, 

amendments,  table  of  citations  of,  Appendix,  p.   1036. 

appellate  jurisdiction  Supreme  Court  in  eases  involving  construction,  §  1555. 

federal  question  arising  under,  §§  124,  1701. 

habeas  corpus,  provision  of,  §  1330. 

powers  of  courts,  §§1,  2,  3. 

removal  by  writ  of  error  to  state  court  of  decision  against  right,  title, 

privilege,  or  immunity  claimed  under  federal,  §  1607. 
table  of  provisions  cited,  Appendix,  p.  1036. 

CONSTITUTIONALITY, 

appellate  jurisdiction  of  Supreme  Court  where  federal  law  or  treaty  drawn 
in  question  on  that  ground,  §  1556. 

CONSTITUTIONAL  JURY, 
see  Jury, 
trial  law  actions,  §  583. 

CONSTITUTIONAL  POWERS,  federal  courts,  §§1,  2,  8. 

CONSTRUCTION, 
Code,  §  1700. 
Constitution  appeal  to  Supreme  Court,, §§  1335,  1338. 


INDEX.  1071 

CONSTRUCTIVE  SERVICE,  |  66. 

CONSUL, 

as  a  party  in  Supreme  Court,  |  1534. 

awards  of,  appellate  jurisdiction  of  the  district  court,  |  107. 

foreign,  in  United  States,  jurisdiction  over  seamen,  §  108. 

CONSULAR  RECORDS,  copies  aa  evidence,  5  304. 

CONTEMPT, 

court's  power  to  punish  for,  §  1118. 

enforcement  of  decrees,  see  that  heading. 

for  noncompliance  with  mandatory  order,  etc.,  Eq.  R.  8,  55  478,  1112,  1140, 
1143. 

garnishee  in,  for  failure  to  appear  in  government  suits  against  corpora- 
tions, }  512. 

witnesses,  power  to  punish  for,  5  347. 

witness  in,  refusing  to  give  testimony  before  commissioner  examiner,  etc., 
Eq.  R.  52,  §  390. 

CONTINUANCES, 

see  also   Adjournments. 

affidavit  on  application  for  provisions  as  to,  Eq.  R.  57,  |  678* 

calendar,  case  on,  §  1032. 

C.  C.  A.  Rule  19  (3d  Circuit)  Appendix. 

costs,  Eq.  R.  57,  §  678. 

counsel's  consent  to,  Eq.  R.  57,  55  678,  67ft. 

death  of  a  party,  §  561. 

debentures,  suits  on,  §  563. 

dismissal  after,  Eq.  R.  57,  9  679. 

district  court,  §  51. 

equity,  suits,  §  678. 

judge's  office  vacant,  §  51. 

law  actions,  §  456. 

postal  laws,  suits  under,  9  564. 

suit  against  delinquent  for  public  moneys,  9  563. 

tariff  laws,  suits  under,  9  566. 

CONTRACTS, 

and  other  papers  of  the  United  States  in  settlement  of  accounts  with 
government,  copies  as  evidence,  9  290. 

CONVEYANCE,  decree  for  how  enforced,  Eq.  R.  8,  9  1140. 
COPIES,  as  evidence,  see  subheading  Copies  under  heading  Eridenee. 

COPY  OF  INTERROGATORIES  to  be  sent  by  eterk  to  solicitors  of  record, 
Eq.  R.  58,9940. 


1072  INDEX, 

COPY  OF  PRECIPE, 

indicating  portions  of  record  on  appeal,  Eq.  R.  75,  §  1671. 

service  of  indicating,  etc.,  Eq.  E.  75,  §  1671. 

• 

COPYRIGHTS, 
costs,  §  437. 

infringement  of,  statute  of  limitations,  §  251. 
laws,  venue,  §  72. 

penalty  under,  statute  of  limitations,  §  241. 
trading  with  the  enemy  act,  suits  under,  §§  1722,  1723. 
venue,  §  72. 

COEPOEATE  OFFICER  to  sign  interrogatories  under  oath,  Eq.  R.  58,  §  940. 

CORPORATIONS, 

banks,  national,  do  not  ipso  facto  involve  federal  question,  §  123. 
congressional  charters  not  a  ground  of  federal  jurisdiction,  §§  122,  123. 

same,   diverse  citizenship,  §  147. 
diverse  citizenship  of,  §  144. 
federal,  involve  question,  §  122. 
involve  national  bank,  §  123. 

same,  except  national  banks,  §  123. 

national  banks,  do  not  ipso  facto  involve  federal  question,  §  123. 
stockholders  as  parties,  §  740. 
stockholder's  bill  against,  Eq.  R.  27,  ch.  29. 
when  interrogatories  to  be  answered  by  officer  of,  Eq.  R.  58,  §  940. 

CORRECTION,  omissions  in  transcript  on  appeal,  Eq.  R.  76,  §  167L 
CORRESPONDENCE,  interrogatories,  as  to,  §  946. 
CORRUPTION  OF  BLOOD,  none  in  criminal  cases,  §  1404. 

COSTS,  see  also  Costs  and  Fees,  ch.  14. 

appeal  and  error,  double  for  delay,  §  1687. 
continuances  beyond  term,  §  1032. 

correction  of  omissions  of  record  on  appeal,  Eq.  R.  76,  §  1671. 
delays  impose  costs  on  exceptions  to  master's  report    Eq.  R.  67,  §  1070. 
depositions  to  be  advanced  by  party  calling  witnesses,  Eq.  R.  50,  §  1044. 
deposition,  when  incompetent  party,  Eq.  R.  51,  §  381. 
double,  nonsuit  action  against  revenue  officer,  §  433. 
imposition  of  for  frivolous  causes,  Eq.  R.  67,  §  1070. 

imposition  of,  for  infraction  of  rule  as  to  record  on  appeal,  Eq.  R.  76, 
f  167-1. 


INDEX.  1073 

COSTS  (Continued). 

may  be  imposed  on  offending  solicitors,  Eq.  R.  78,  9  1871. 

motions  will  not  be  granted  unless  paid,  Eq.  B.  17,  §813. 

of  continuances,  provisions  as  to,  Eq.  B.  57,  99  678,  679. 

of  incompetent,  etc.,  depositions  to  be  dealt  with  by  court,  Eq.  B.  51, 
9381. 

of  plaintiff  to  be  paid  before  court  will  set  aside  decree  pro  confetso,  etc., 
Eq.  B.  17,  9  813. 

on  exception  to  master's  report,  Eq.  B.  67,  9  1070. 

on  proving  execution  or  genuineness  of  document,  etc.,  Eq.  B.  58,  9  940. 

on  reference  to  master,  Eq.  B.  59,  9  1061. 

payment  of,  and  full  compliance  with  decree  before  a  discharge  of  attach- 
ment, Eq.  B.  8,  §§  473,  1112,  1140,  1143. 

stenographer's  fees  to  be  taxed  as,  Eq  B.  50,  9  1044. 

terms  as  to,  when  further  and  particular  statement  in  pleading  required, 
Eq.  B.  20,  ch.  41,  §§  812,  968. 

to  nominal  parties,  Eq.  B.  40,  9  721. 

verification  of  bill  of,  9  403. 

witnesses  before  commissioner,  master,  or  examiner,  Eq.  B.  52,  9  390. 

COSTS  AND  FEES,  ch.  14. 

amount  in  controversy,  as  affecting,  §  406, 
amount  of  recovery  affecting,  §  406. 
appraisers,  fees  on  execution  sales,  9  429. 
attorneys, 

civil  rights  cases,  9  414. 

fees  of,  §  409. 

liability  for  costs  Texatiously  increased,  9  410. 
bill  of  costs,  §§  401,  402. 

bond  circuit  court  of  appeals,  Bule  13  C.  C,  A.  Bule  27  C.  C.  A.   (6th 
Circuit)    Appendix. 

Bule  29  C.  C.  A.  (3d,  4th,  5th,  7th,  8th  and  9th  Circuits)  Appendix. 

Bule  31  C.  C.  A.  (1st  and  2d  Circuits)  Appendix, 
clerk's  fees,  §  412. 

civil  rights  case,  9  414. 

Chinese  exclusion  laws,  commissioner's  fees,  9  416. 
eircuit  court  of  appeals,  Rule  43  C.  C.  A.  (8th  Circuit)  see  Bond  C.  C.  A. 

above,  Appendix. 

civil  rights  laws,  attorney's,  clerk's,  and  marshal'!  fee»,  9  <!*» 
commissioner's  fees,  9  414. 

Chinese  exclusion  laws,  9  416. 
consolidated  cases,  §  407. 
copyright  cases,  9  437. 
court  of  claims,  9  1438. 
Manual — 68 


1074  INDEX. 

COSTS  AND  FEES   (Continued), 
criminal  eases, 

defendant,  prosecution  on  penal  statute,  §  435. 

indigent  parties,  §§  404,  405. 

informer,  prosecution  on  penal  statute,  §  436. 

preliminary  examination,  United  States  only  liable  for  witness  fees, 

$423. 
defendant, 

indigent  in  criminal  cases,  witness  fees,  §  405. 

nonsuit  of  prosecution  under  penal  statute,  §§  435,  436. 
definition,  folio,  printer's  fees,  §  423. 
depositions, 

District  of  Columbia,  witness  fees,  §  420. 
district  attorney's  fees,  §  411.      v 
execution  sale,  appraiser's  fees,  §  417. 
extradition,  costs  and  fees,  §  417. 
fines,  costs  of  prosecution,  §  434. 
folio  defined,  §  428. 

form  of  bond,  8th  circuit,  Addenda,  Eule  45  C.  C.  A.  Appendix, 
grand  juror,  fees  of,  §§  425,  426. 

indigent  party, 

costs  and  fees,  §  404. 

witness  fees  in  criminal  cases,  §  405. 
infringement  of  patent,  §  438. 

juror  fees, 

grand  juror,  §  425. 

payment,  how  made,  §  426. 

petit  juror,  §  426. 
marshal,  §  413. 

civil  rights  cases,  §  414. 
master  in  chancery,  §  1070. 
mode  of  recovery,  §  408. 
nonsuit,  costs  against  informer  on  nonsuit,  §  436. 

for  defendant  on  nonsuit,  §  435. 
officer  of  court  not  entitled  to  witness  fees,  §  419. 
patent  infringement  cases,  §  438. 

penal  statute, 

costs  against  informer  on  nonsuit,  §§  435,  436. 

for  defendant  on  nonsuit,  §  565. 
printer's  fees,  §  427. 

folio  defined,  §  428. 

prize  cases,  witness  fees,  how  paid,  §  424. 
proctors,  §  409. 


INDEX. 

COSTS   AND  PEES   (Continued), 
revenue  cases, 

against  nonsuited  plaintiff  in  action  against  officer,  double  cost*  tared, 
5431. 

none  against  United  States  in  cases  upon  information,  {  430, 

seizure  cases,  §  431. 
•alary,  district  attorney,  §  411. 
seamen,  fees  of,  criminal  cases,  9  422. 
•olicitors,  §  409. 
taxable  costs  and  fees,  §  401. 
reriflcation  bill  of  costs,  §  402. 
Witness  fees,  see  Witness,  subhead  Fees,  §  418. 

court  officers  not  entitled  to,  §  419. 

criminal  examination,  United   States  only  liable  for   four  witnesses, 
9423. 

depositions  in  District  of  Columbia,  §  420. 

indigent  defendant  in  criminal  cases,  §  405. 

letters  rogatory  from  a  foreign  country,  9  421. 

prize  cases,  §  424. 

seamen  sent  home  to  give  testimony  in  criminal  cases,  9  422. 
writ  oi  error,  §  1687. 

COUNSEL, 

consent  of,  to  continuances,  provisions  as  to,  Eq.  R.  57,  f  678. 

signature  of,  Eq.  R.  24,  9  699. 

to  aid  district  attorney,  §  34. 

to  give  notice  of  taking  testimony  before  examiner,  etc.,  Eq.  B.  53,9391. 

to  sign  petition  for  rehearing,  Eq.  B.  69,  9  1160. 

COUNSEiLORS,  see  Attorneys,  and  see  Counsel 

COUNTER  ALLEGATIONS,  habeas  corpus  return,  9  1340. 

COUNTERCLAIM  AND  SETOFP,  ch.  45. 

COUNTERCLAIM,  court  of  claims,  enforcement  of  judgment,  9  H39. 

COUNTERCLAIM  IN  EQUITY,  99  980,  881,  982,  983. 
amendment,  9  966. 
answer  in  equity,  9  980. 
attacks  upon,  9  968. 
certainty  in,  motion  for,  9  968. 
contents,  9  980. 

cross-bill,  matter  for,  set  up  in  counterclaim,  9  983. 
damages,  unliquidated,  9  985. 


1076  INDEX. 

COUNTERCLAIM  IN  EQUITY  (Continued). 
definiteness,  motion  for,  §  968. 
discovery,  §  975. 
effect  of,  §§  980,  982. 
effect  of  failure  to  plead,  §  989. 
form,  rule  as  to,  §  980. 

illustration  of,  growing  out  of  the  same  transaction,  §  981. 
impertinent  matter  in,  motion  to  strike,  §  968. 

in  default  of  reply  to,  decree  pro  confesso  entered,  Eq.  R.  31,  ch.  47. 
independent  suit  in  equity  in,  §  982. 
irrelevant  matter  in,  motion  to  strike  out,  §  968. 
issue,  when  reply  filed,  §  1010. 

jurisdiction  not  affected  by  a  defense  that  may  reduce  amount,  §  177. 
motion  to  make  more  definite  and  certain,  §  968. 

motion  to  strike  redundant,  impertinent,  or  scandalous  matter  in,  §  968. 
objections  to,  §  968. 
parties  new,  not  to  bring  in,  §  984. 
pleading,  §  980. 

redundant  matter  in,  motion  to  strike  out,  §  968. 
reply  to,  §  1010. 

scandal  in,  motion  to  strike  out,  §  968. 
service,  time  for,  §  672. 
aetoff,  in  the  answer,  §§  980,  982. 
sufficiency  tested  by  motion  to  strike  out,  §  1000. 
supplemental  pleading,  §  967. 
time  for,  §  963. 

to  be  stated  in  answer,  Eq.  R.  30,  §  980. 
unfair  competition,  §  981. 
unliquidated  damages,  §  985. 

COURT,  see  also  heading,  Courts,  below, 
bankruptcy,  an  equity,  §  881. 
bill  of  review,  leave  to  file,  §  1181. 
bill  of  particulars,  §  922. 

compensation  of  master  fixed  by,  Eq.  R.  68,  §  1060. 
constitutional  powers  of,  §  3. 
contempt  of,  by  witness,  refusing  to  appear  before  commissioner,  mastw 

or  examiner,  Eq.  R.  52,  §  390. 
discretion  granting  rehearing,  §  1164. 
district,  additional  rules  by,  Eq.  R.  79,  §§8,  58. 
enforcing  answer  to  interrogatories,  Eq.  R.  58,  §  940. 
judicial  power  of,  §  3. 

leave  of,  not  required  to  sue  receivers,  when,  §  1083. 
may  appoint  standing  masters  in  chancery,  Eq.  R.  68,  §§  35,  1060. 
oaths,  administer,  §  359. 


INDEX.  1077 

COURT   (Continued). 

on  motion  or  own  initiative,  may  order  redundant,  impertinent  or  scandal- 
ous matter  stricken  out,  Eq.  R.  21,  ch.  42,  SS  812,  820,  968. 

open  when,  §  52. 

places  for  holding,  5  50. 

provisions  as  to  approval  by,  of  appellant's  statement,  etc.,  on  appeal, 
Eq.  R.  75,  S  1671. 

rehearing,  discretion,  S  1164. 

rules  additional  by  district,  Eq.  R.  79,  55  8,  58. 

terms,  5  50. 

terms  of  C.  C.  A.,  §  1472. 

testimony  usually  to  be  taken  in,  at  trial,  Eq.  R.  46,  §?  1040,  104S. 

to  deal  with  cost  of  incompetent,  etc.,  depositions,  Eq.  R.  51,  S  381. 

writs,  power  to  iasue,  §  1100. 

COURT  COMMISSIONERS,  5  3S. 

COURT  OF  CLAIMS,  ch.  68,  §  3. 

abandoned  property,  claims  for  proceeds  of,  S  1432. 

aliens,  claims  of,  9  1432. 

appeals,  §  1440. 

appeals  to  Supreme  Court,  §  1560. 

burden  of  proof,  5  1434. 

claimant,  examination  of,  5  1434. 

claims, 

abandoned  property,  S  1432. 

against  government,  exceptions,  5  1432. 

aliens,  5  1432. 

pending  elsewhere,  excepted,  5  1432. 

proceeds  abandoned  property,  5  1432. 

railroad  companies,  S  1432. 

referred  by  Congress,  S  1432. 

referred  by  departments,  S  1432. 
Congress,  claims  referred  by,  5  1432. 

evidence  from,  5  1434. 
costs,  §  1438. 

counterclaim,  enforcement  of  judgment,  9  143i. 
defense  by  attorney  general,  5  1434. 
departments,  claims  referred  by,  S  1432. 
department,  evidence  from,  9  1434. 
disqualification  to  practice  in,  5  1*30. 

evidence, 

burden  of  proof, 9  1434. 
examination  of  claimant,  5  1434. 
from  departments  and  Congress,  9  1434. 
testimony  before  commissioners,  5  1434. 
witnesses,  5  1434. 


1 078  INDEX. 

•' 

COURT  OF  CLAIMS  (Continued), 
examination  of  claimant,  §  1434. 
indebtedness  due  government,  settlement  of,  §  1438. 
Indian  treaties,  no  jurisdiction,  §  1432. 
interest,  §  1437. 
judges,  §  1430. 
judgment, 

counterclaim,  enforcement,  §  1439. 

effect  of,  §  1439. 

reports  to  Congress  and  executive  officers,  §  1439. 
jurisdiction, 

claims  against  government,  exceptions,  §  1432. 

claims,  aliens,  §  1432. 

claims  pending  elsewhere,  §  1432. 

claims  railroad  companies,  §  1432. 

claims  referred  by  Congress  and  departments,  §§  1432. 

Indian  treaties  (exeepted), §  1432. 

patent  cases,  unlicensed  use  by  government,  §  1432. 

restrictions  of,  §  1432. 

settlement  indebtedness  due  government,  §  1432. 

treaies  (exeepted),  §  1432. 
limitations,  statute  of,  §  1433. 
maintenance  of,  §  1430. 
new  trial,  §  1435. 
officers,  §  1430. 
organization,  §  1430. 

patent  infringement  by  government,  §  1433. 
petition,  §  1434. 
practice,  disqualification  for,  §  1430. 

rules  of,  §  1434. 
quorum,  §  1431. 

railroad  companies,  claims  for  transportation  furnished,  § 
rules  of  practice,  §  1434. 
sessions,  §  1431. 

setoff,  enforcement  of  judgment,  §  143SK 
statute  of  limitations,  §  1433. 
testimony  before  commissioners,  §  1434. 
traverse,  §  1434. 

treaties,  no  jurisdiction  of  claims  under,  §  1432. 
witnesses,  §  1435. 

OOUET  OF  CUSTOMS  APPEALS,  ch.  69. 
appeal,  time  for,  §  1455. 
assistant  clerks',  §  1452. 
board  of  general  appraisers,  §  1451. 


INDEX.  1079 

COURT  OF  CUSTOMS  APPEALS  (Continued). 
calendar,  §  1456. 
clerks,  §  1452. 
clerks,  assistant,  |  1452. 
courtrooms,  §  1452. 
general  appraisers,  board  of,  f  145L 
judges,  §  1452. 
jurisdiction,  §  1454, 
marshal,  §  1452. 
organization,  §  1452. 
quorum,  §  1452. 
rules,  §  1452. 
sessions,  9  1453. 
time  for  appeal,  §  1455. 

COURT  RECORDS,  where  kept,  5  54. 

COURTS, 

constitutional  powers  of,  §f  1,  2,  3. 

circuit  court  of  appeals,  see  that  heading,  ch.  76. 

court  of  claims,  see  that  heading,  ch.  68,  §  4. 

court  of  customs  appeals,  see  that  heading,  ch.  69,  ft  4. 

district  courts,  see  that  heading,  9  4. 

double  system  of  federal  and  state,  §  5. 

enumeration  of,  §  4. 

equity,  see  that  heading,  ch.  25. 

federal  courts,  see  that  heading. 

generally  as  to,  ch.  1. 

judicial  districts,  ch.  6,  Jud.  Code,  Appendix. 

judicial  power  of,  §§  1,  2,  3. 

jurisdiction  in  general,  ch.  1. 

law  actions,  see  that  heading,  ch.  15. 

places  for  holding,  ch.  5,  Jud.  Code,  Appendix. 

rules,  see  Rules. 

states,  district  courts  in  the  several,  ch.  5,  Jud.  Code,  Appendix. 

Supreme  Court,  ch.  72,  §  4. 

terms  of,  in  judicial  districts,  ch.  5,  Jud.  Code,  Appendix. 

CREDITOR,  making  claim  before  master  examinable  by  him,  Eq.  B.  65,  |  1063. 

CREDITS, 

government  suits  against  individuals,  9  1709. 
postal  laws,  government  suits  under.  9  1710. 

CRIER, 

circuit  court  of  appeals,  Rule  6  0.  C.  A.  Appendix, 
district  court,  9  32. 


1080  INDEX. 

CRIMES, 

see  also  Criminal  Procedure, 
criminal  laws,  see  Penal  Laws,  §  83. 

district  court  jurisdiction  over  crimes  on  Indian  reservation,  §  106. 
.   Indian  reservation,  South  Dakota,  §  106. 
statutes  of  limitations,  §§  231,  237. 
revenue  laws,  §  235. 
slave  trade  laws,  §  234. 
venue,  §  75. 

CRIMINAL  CODE,  table  of  sections,  Appendix,  p.  1031. 
CRIMINAL  JURISDICTION,  ch.  59. 

CRIMINAL  PROCEDURE, 

accused, 

arrest,  see  that  heading,  §§  1260,  1261. 

bail,  see  that  heading,  §§  1263,  1268. 

compulsory  process  for  witnesses,  §§  338,  342,  1363,  1364. 

confinement,  see  that  heading,  §§  1260,  1386,  1390. 

costs  and  fees,  indigent  defendant,  §  405. 

counsel,  entitled  to,  §  1364. 

indictment,  see  that  heading,  §§  1224,  1243. 

lists  of  jurors  and  witnesses,  entitled  to,  in  what  cases,  J  1363. 

prosecution,  §  1361. 

recognizance,  §  1268. 

trial,  §§  1260,  1365,  1369. 

verdict,  5§  1380,  1382. 
-    witnesses,  entitled  to  list  of  and  compulsory  process,  §§  339,  342, 

1363,  1364. 

adjournments,  monthly,  to  expedite  criminal  cases,  §  51. 
appearance  bond  on  writ  of  error  circuit  court  of  appeals,  Addenda,  Rule 

45  C.  C.  A.  Appendix, 
arrest,  see  that  heading,  §  1260. 
bail,  see  that  heading,  5§  1263,  1268. 
bigamy,  challenges  in  prosecutions  for,  §  1368. 
challenges,  §§  1366,  1368. 

compulsory  process  for  witnesses,  §§  339,  342,  1363. 
confinement  of  prisoners,  §§  1260,  1386,  1390. 
corruption  of  blood,  none,  §  1404. 
costs  and  fees,  see  Costs  and  Fees, 
death  penalty,  §§  1403,  1405. 
defendant  as  a  witness,  §  338. 
defendant  indigent,  witnesses  for,  §  345. 
discharge  indigent  convicts,  §  1385. 


INDEX.  1081 

CRIMINAL  PROCEDURE   (Continued), 
execution,  death  penalty,  §  1403. 

postponement,  §  1382. 

federal  courts,  penal  laws  enforced  in,  9  1202. 
fine,  mitigation  or  remission,  §§  1400,  1402. 
forfeiture  of  estate,  none,  §  1406. 
grand  jury,  §§  1220,  1224. 
imprisonment,  see  Confinement,  |  1260. 
indictment,  see  that  heading,  §§  1243,  1224, 

consolidation  of  charges,  §  1243. 

defect  of  form,  §  1244. 

grand  jury,  §  1224. 

navy  court-martial,  §  1242. 

perjury,  §  1240. 

subornation  of  perjury,  §  124L 
judgment,  ch.  66. 
judgment,  fines  how  collected,  9  1384. 

on  demurrer  to  indictment,  9  1245. 
jurors,  list  of,  to  be  given  person  indicted  of  treason  or  capital  offonie, 

9 1363. 
jury,  criminal  cases,  see  heading,  Jury,  9  1224. 

grand,  §9  1220,  1224. 
jurisdiction,  §  1200. 

navy  court-martial,  indictment,  9  1242. 
offenses,  how  prosecuted,  §  1360. 
officers  authorized  to  hold  to  security  of  the  peace  and  good  behavior, 

9 1262. 

pardon,  ch.  67. 
pardon  by  President,  9  1406. 
parole,  ch.  67. 
parole  of  prisoners,  9  1407. 
peremptory  challenges,  §§  1366,  1387. 
perjury,  indictment,  9  1240. 
pillory  abolished,  9  1405. 

places  in  which  criminal  law  of  the  United  States  applicable,  9  1201. 
plea  not  guilty,  standing  mute,  9  1362. 
polygamy,  challenges  in  prosecution  for,  9  1388. 
prisoner, 

arrest,  see  that  heading,  99  1260,  1261. 

bail,  see  that  heading,  §§  1263,  1268. 

confinement,  see  that  heading,  99  1260,  1261,  1386,  1390. 

counsel,  entitled  to,  9  1364. 

indictment,  see  that  heading,  §§  1224,  1243. 

list  of  jurors  and  witnesses,  entitled  to,  in  what  cases,  |  136S. 

recognizance,  99  340,  342,  1268. 


1082  INDEX. 

CEIMINAL  PEOCEDUEE   (Continued), 
prisoner   (continued). 

removal  from  one  district  to  another,  §  1270. 

trial,  §§  1260,  1365,  1369. 
prosecution  by  district  attorney,  §  1369. 
recognizance  of  witnesses,  f  §  340,  342. 
recognizance,  forfeitures  or  remittance  of,  §  1268. 
state, 

criminal  jurisdiction  not  affected,  §  120&. 

jurisdiction  of  offenses,  §  1205. 

penal  laws,  where  adopted  in  the  federal  courts,  §  1203. 
subornation  of  perjury,  indictment,  §  1241. 
statutes  of  limitation,  §  1207. 
trial,  ch.  65. 

criminal  cases,  §  1369. 

jury,  right  of  accused  to,  f  1365. 

removal  for,  of  offenders  against  the  United  States,  §  1260. 
venue,  §  1207. 
verdict,  ch.  66. 

for  less  offense  than  charge,  §  1380. 

in  case  of  several  defendants,  §  1381. 

qualified  in  cases  of  murder  of  the  first  degree  or  rape,  §  1382. 
whipping  abolished,  §  1405. 
witnesses, 

compulsory  process  for,  §§  339,  342,  1363,  1364. 

defendant  as  a  witness,  §  338. 

immunity  of,  §§  335,  336. 

indigent  defendant  for,  §  345. 

list  of,  to  be  given  person  indicted  for  treason  or  capital  crime, 
§  1363. 

recognizance  of,  §§  340,  342,  126S. 
writ, 

copy  of  jailer's  authority,  §  1269. 

indictments,  several  against  same  person,  one  writ,  §  127L 

not  required  to  bring  a  person  in  custody  into  court,  §  1272. 

removal  of  prisoner  from  one  district  to  another,  §  1270. 
writ  of  error,  circuit  court  of  appeals, 

Eule  34  C.  C.  A.  (7th  Circuit  ^    Appendix. 

Eule  35  C.  C.  A.  Appendix. 

Eule  37  C.  C.  A.  (5th  Circuit)    Appendix. 

CETMINAL  PEOSECUTIONS,  see  Prosecutions,  §§  83, 

CROSS^BILL, 

answer  in  equity,  contains  matter  of.  §  983. 


INDEX.  1083 

CROSS-BILL  (Continued). 

counterclaim  and  setoff  supersedes,  ch.  45. 

counterclaim  takes  the  place  of,  §  983. 

counterclaim  to  be  stated  in  answer  and  not  by,  Eq.  B.  30,  |  980. 

CROSS-EXAMINATION, 
deposition,  §  1020. 
of  witnesses  in  patent  and  trademark  cases,  Eq.  R.  48,  §9  1041,  1045. 

where  no  notice  of  deposition  given,  Eq.  R.  54,  §  372. 
witnesses  before  examiner,  Eq.  R.  54,  §  372. 

CUSTODY, 

prisoners  on  habeas  corpus,  circuit  court  of  appeals, 
Rule  32  C.  C.  A.  Appendix. 

Rule  31  C.  C.  A.  (3d  and  7th  Circuits)  Appendix, 
Rule  32  C.  C.  A.  (6th  Circuit)  Appendix, 

CUSTOMS  LAWS, 

bail  in  suit  under,  §  1273. 

bailing  property  seized,  §  1707. 

burden  of  proof  seizure  cases,  §  308. 

costs  double,  nonsuit  in  action  against  revenue  officer,  §  433. 

court  of  customs  appeals,  see  that  heading,  ch.  69. 

district  court's  jurisdiction  over,  §  101. 

motion  and  notice  to  produce  books  and  papers,  §  572. 

procedure  in  seizure  cases,  §  1706. 

statute  limitations  violation  of  laws,  §§  239,  240. 

warrants  for  searches  and  seizures,  §  1705. 

witnesses,  not  disqualified  by  claiming  compensation  under,  §  333. 


D. 

DAMAGES, 

appeal  and  error,  for  delay,  §  1687. 

averments  in  bill  as  to,  Eq.  R.  30,  §  964. 

circuit  court  of  appeals,  Rule  26  C.  C.  A.  (6th  Circuit)   Appendix. 

counterclaim,  §  985. 

equity  suit,  recoverable  in,  §  861. 

to  be  shown  on  application  for  preliminary  injunction,  Eq.  B.  73,  |  1103. 

when  court  of  eqirity  will  give,  Eq.  R.  23,  ch.  38. 

writ  of  error,  §  1687. 

DANISH   WEST   INDIAN    ISLANDS,    appellate   jurisdiction    third    circuit, 
§  1508. 


1084  INDEX. 

DEATH  OF  A  PARTY, 

after  judgment  before  appeal,  §  1691. 

circuit  court  of  appeals,  Rule  19  C.  C.  A.  Appendix. 

Rule  21,  3d  circuit  under  Rule  19  C.  C.  A.  Appendix. 

Rule  16,  6th  circuit  under  Rule  19  C.  C.  A.  Appendix, 
continuance,  §  561. 

pending  appeal  to  Supreme  Court,  §  1692. 
pending  appeal  to  circuit  court  of  appeals,  §  1692. 
procedure  in  circuit  court  of  appeals  where  decedent's  representative 

not  within  jurisdiction,  §  1692. 
procedure  in  Supreme  Court  when  deceased's  representative  not  within 

jurisdiction,  §  1692. 
revivor,  Eq.  R.  45,  §  763. 
survival  of  law  action,  §  562. 

DEATI?  PENALTY, 
execution  of,  §  1403. 

DE  BENE  ESSE,  see  Depositions,  De  Bene  Esae. 
DEBENTURE,  continuances  in  suits  on,  §  565. 

DEBT,  IMPRISONMENT  FOR, 

execution,  state  laws  adopted,  §  636. 
suits  by  government,  §§  638,  639. 

DECISIONS,  see  Opinions. 

district  court,  reports  of,  §  55. 
Supreme  Court,  §  1531. 

DECLARATION, 

amount  in  controversy,  statement  of,  §  175. 
initial  pleading,  see  that  heading. 

DECREE,  see  also  Decree  Pro  Confesso,  below. 

appellate  court  not  to  reverse  unless,  Eq.  R.  46,  §  1043. 

assistance,  writ  of,  Eq.  R.  9,  §  1143. 

attachment  not  to  be  discharged  until  compliance,  Eq.  R.  8.  §§  473,  1112, 

1140,  1143. 
compelling  obedience  to,  writ  of  sequestration,  Eq.  R.  8,  §§  473,  1112, 

1140,  1143. 

conditional  relief,  §  1144. 

contempt  proceedings  to  enforce,  Eq.  R.  8,  §§  473,  1112.  1140,  1143. 
discharge  of  attachment  upon  compliance  with,  Eq.  R.  8,  §§  473,  1112, 

1140,  1143. 


INDEX.  1085 

DECREE  (Continued), 
drafting,  9  1142. 

default,  see  that  heading,  §  811. 
enforcement  of,  §§  1143,  1144. 
entry,  §  1142. 
equity  suits,  ch.  56. 
filing,  §  1142. 

final,  appeals  from  in  injunction  suits,  Eq.  R.  74,  §§  1107,  1667. 
final,  does  not  become  where  petition  for  rehearing  filed  during  term  of 

entry,  §  1161.    . 

final,  enforcement  of,  Eq.  B.  8,55473,  1112,  1140,  1143. 
findings,  5  1141. 

for  deficiency  in  foreclosure,  etc.,  Eq.  B.  10,  5  1140. 
for  delivery  of  possession,  writ  of  assistance  on  refusal  to  obey,  Eq.  B. 

9,  5  1143. 

for  specific  performance,  provision  as  to,  Eq.  B.  8,  55  473,  1112,  1140, 1143. 
form  of,  injunction,  5  1122. 
form,  rule  as  to,  5  1140. 
injunctions,  see  that  heading,  ch.  53. 
injunction,  form  of,  5  1122. 
invalid  outside  the  issues,  5  1145. 
lien  of,  5H44. 

lien  of,  not  divested  by  creation  of  new  district  or  division,  5  1147. 
mistakes,  correction  of,  5  1160. 
motion  to  dismiss,   form  of  on  a,  §  891. 

notice  of  certain,  defendant  to  take,  Eq.  B.  8,55473.  1112,  1140,  1143. 
notice  to  be  taken  of  certain,  Eq.  B.  8,  5§  473,  1112,  1140,  1143. 
not  to  be  reversed  unless  material  prejudice  would  result,  Eq.  B.  46, 

5 1043. 

objections  to  draft  of,  5  1142. 
outside  the  issues,  invalid,  5  1145. 
prize  cases,  appeals  to  Supreme  Court,  5  15S4. 
process  to  issue  to  compel  obedience  to,  Eq.  B.  7,  5  1112, 
pro  confesso,  see  Decree  Pro  Confesso,  ch.  35. 
record   of,  5  1142. 
rehearing  as  suspending,  5  1161. 
removable  by  writ  of  error  to  state  court,  5  1603. 
retaining  case  to  afford  complete,  5  1146. 
settling  objections  to  draft  of,  51142. 
signature  to,  §  1142. 
solely  for  payment  of  money,  writ  of  execution  on,  Eq.  R.  8,  5!  473, 

1112,  1140,  1143. 
term,  after,  5  1033. 

to  bo  sent  up  with  agreed  statement  on  appeal,  Eq.  R.  77,  5  1671. 
to  be  entered  in  equity  journal,  Eq.  B.  3,  Appendix. 


1086  INDEX. 

DECREE  FOR  POSSESSION,  clerk  to  issue  writ  of  assistance  for  refusal 
to  obey,  Eq.  R.  9,  §  1143. 

DECREE  PRO  OONFESSO,  ch.  35. 

answer  not  filed  after  motion  to  dismiss  denied,  Eq.  R.  29,  §§  580,  900. 

•bill,  if  answer  not  filed,  Eq.  R.  12,  §§  810,  963. 

costs  on  motion  to  set  aside,  Eq.  R.  17,  §  813. 

counterclaim,  reply  to  in  default,  Eq.  R.  31,  ch.  47. 

default,  when  taken,  Eq.  R.  16,  §  811. 

defect  of  parties  and  issue  as  to,  §  762. 

defensive  pleading  in  equity,  §  810. 

final  decree,  when  made,  §  813. 

final  following  if  answer  not  filed,  etc.,  Eq.  R.  29,  §§  850,  900. 

final  following  in  default  of  reply  to  counterclaim,  Eq.  R.  31,  ch.  47. 

motion  to  dismiss,  as  affecting  default,  §  813. 

motion  to  make  more  definite  and  certain,  §  920. 

motion  to  set  aside — when  answer  must  be  filed,  Eq.  R.  17,  §  813. 

motion  to  strike  redundant,  impertinent,  or  scandalous  matter,  §  930. 

motion  to  transfer  to  law  side,  |  940. 

pleading  to  save  from,  §  812. 

time  for,  §§  810,  813. 

to  be  followed  by  final  decree,  Eq.  R.  17,  5  813. 

when  made  final,  Eq.  R.  17,  §  813. 

DEDIMUS  POTESTATEM,  see  Depositions,  §  384  et  seq. 

DEEDS,  etc.,  decree  for  delivering  up,  attachment  in,  Eq.  R.  8,  §§  473,  1112, 
1140,  1143. 

DEFAULT, 

answer  in,  decree  pro  confesso,  Eq.  R.   16,  §§  665,  811,  963. 

decree  pro  oonfesso,  when  taken,  §  811. 

equity  cases,  §  811. 

in  answer  to  amended  bill,  proceedings  on,  Eq.  R.  32,  §  962. 

law  actions,  §  542. 

of  reply  to  counterclaim  decree  pro  oonfesso,  Eq.  R.  31,  ch.  47. 

pleading  required  to  save  from,  in  equity,  §  812. 

publication,  §  66. 

setting  aside,  service  by,  §  66. 

substituted   service,  §  66. 

when  taken  in  equity,  §  811. 

DEFECT,  court  to  disregard  in  proceeding  not  affecting  substantial  right. 

Eq.  R.  19,  §  760. 

of  parties — resisting  objection,  Eq.  R,  §§  762,  824. 
tardy  objection  to,  Eq.  R.  44,  §§  724,  824. 


INDEX. 

DEFECT  OF  PARTIES, 

defensive  pleading,  equity,  §  824. 

motion  to  dismiss  for,  equity,  55  824,  880,  886,  900. 

parties  in  equity,  §  824. 

DEFENDANT, 

see  also  Criminal  Procedure,  subhead  Accused. 

absent,  venue  when,  §  66. 

bail  of,  S  1274. 

compulsory  process  for  witnesses  for  indigent,  §  345. 

if  not  found,  writ  of  sequestration  proper  process  to  issue,  etc.,  Eq.  B.  7, 

§  1112. 

indigent,  compulsory  process  for  witnesses,  §  345. 
indigent,  costs  and  witness'  fees  in  criminal  cases,  9  405. 
not  found,  writ  of  sequestration,  Eq.  B.  7,  8  1112. 
person  refusing  to  join  as  plaintiff  or  defendant  may  be  made  defendant, 

Eq.  B.  37,  §  710. 
required  to  file  answer  on  or  before  the  twentieth  day  after  service 

of  subpoena,  Eq.  B.  12,  §§  665,  810. 
service  of  subpoena  to  be  upon,  Eq.  B.  13,  9  797. 
subpoena  proper  process  to  compel  appearance  and  answer  of,  Eq.  B.  7, 

§790. 

time  within  which  to  take  deposition  for,  Eq.  B.  47,  ch.  48. 
to  answer  within  time  named  in  the  subpoena,  Eq.  R.  16,  8  811. 
to  take  notice  of  certain  decrees,  Eq.  B.  8,  99  473,  1112,  1140,  1143. 
where  in  different  district,  same  state,  venue,  9  64. 
where  some  not  found  venue,  9  74. 
witness  in  criminal  proceedings,  9  338. 
witness,  subpoena  for,  on  behalf  of  indigent  in  criminal  cases,  9  345. 

DEFENSE, 

abatement,  plea  of,  now  set  up  answer,  Eq.  B.  29,  9  900. 

answer  as  a  plea,  9  903. 

see  Defensive  Pleading. 

alternative  in  answer,  Eq.  B.  30,  9  964. 

answer  in  equity,  see  that  heading,  ch.  44, 

answer  presents,  Eq.  B.  29,  ch.  40,  8  900. 

counterclaim  in  equity,  see  that  heading,  §8  980,  981,  982,  983. 

court  of  claims,  by  Attorney  General,  9  1434. 

cross-bill,  counterclaim  takes  the  place  of,  8  982. 

further  and  better  statement  of  nature  of,  may  be  ordered,  Eq.  B.  20, 

§8920,  967. 

how  presented,  Eq.  B.  29,  §  900. 
misjoinder,  how  presented,  Eq.  B.  29,  88  880,  900. 
motion  to  dismiss  presents.  Eq.  B.  29,  §§  830,  900. 


1088  INDEX. 

DEFENSE?  (Continued). 

nonjoinder,  Eq.  B.  29,  §§  880,  900. 
plea  in  bar  made  in  answer,  Eq.  R.  29,  §  900. 
sufficiency  tested,  by  motion  to  strike  out,  §  1000. 
setoff,  see  Counterclaim,  §  980. 
testing  sufficiency  of    Eq.  R.  33,  ch.  46,  §  1000. 

what  to  be  heard  separately  and  disposed  of  before  trial,  etc.,  Eq.  R. 
29,  §  900. 

DEFENSIVE  PLEADING,  see  headings  below,  Defensive  Pleading— Equity, 
and  Defensive  Pleading — Law. 

DEFENSIVE  PLEADING,  EQUITY,  ch.  36. 

see  headings,  Answer  (ch.  44);  Decree  pro  Confesso   (ch.  35);  Equity 

Suit;  Motions;  Pleading, 
answer,  defense  in  point  of  law,  §§  880,  900. 
better  statement,  motion  to  obtain,  §  920. 

cause  of  action,  failure  to  state,  motion  to  dismiss  or  in  answer,  §§  880,  900. 
defect  of  parties,  §  824. 

defense  in  point  of  law,  motion  to  dismiss,  §§  880,  900. 
definite  motion  to  make  more,  §  920. 
demurrers  in  equity  abolished,  §§  88C,  900. 
impertinent  matter,  to  remove,  §  930. 
issue  of  law,  §§  880,  900. 
kinds  of,  in  equity,  §  820. 
misjoinder,  motion  to  dismiss  for,  §§  880,  900. 
motion  day  in  equity,  §  821. 
motions  to  dismiss,  ch.  39. 
motions  grantable  of  course,  §  823. 
motion  to  make  more  definite  and  certain,  §  920. 
motion  to  strike  out  defense,  §  673. 
motion  to  transfer  to  law  side,  §  940. 
notices  under  equity  rules,  §  822. 
notices  of  orders,  §  825. 
particulars,   to   obtain,  §  920. 
parties,  defect  of,  §  824. 
pleas  abolished,  §  900. 
,  redundant  matter,  to  remove,  §  930. 
scandal,  to  remove,  §  930. 
time  for  defensive  pleading,  §  810. 

DEFENSIVE  PLEADING,  LAW,  ch.  22,  §  584. 
amendment,  §  546. 
conformity  to  state  law,  ch.  19. 
default,  §  542. 

differences  between  law  and  equity,  §  6. 


INDEX  1089 

DEFENSIVE  PLEADING,  LAW  (Continued), 
equitable  defense*,  §  545. 
form  of,  §  543. 

initial  must  show  federal  grounds,  99  129,  130. 
manner  of,  §  544. 

motion  to  transfer  from  equity  to  law,  9  840. 
order  of,  9  541. 
scope  of,  9  544. 
sufficiency  of,  9  544. 
time  for,  9  541. 

DEFICIENCY,  decree  for,  in  foreclosure,  Eq.  R.  10,  §  1140. 

DEFTNITENESS, 

further  and  better  statement  may  be  ordered,  Eq.  B.  20,  99  920,  9«7. 
motion  for,  equity,  9  920. 
see  bill  of  particulars,  9  924. 

DEFINITIONS,  9  1701. 

amount  in  controversy,  9  174. 

appellant,  Rule  1  C.  C.  A.  (6th  Circuit)  Appendix. 

appellee,  Rule  1  C.  C.  A.  (6th  Circuit)   Appendix. 

counsel,  Rule  1  C.  C.  A.  (6th  Circuit)  Appendix. 

diverse  citizenship,  9  141. 

federal  question,  9  125. 

folio,  printer's  fees,  9  428. 

DELAWARE,  districts  in,  terms  and  places  of  holding  court,  §  75,  Jud.  Code, 
Appendix. 

DELAY,  imposition  of  costs  for,  on  exception  to  master's  report,  Eq.  R.  87, 

9  1070. 

master  to  certify  reason  for  any  to  court,  Eq.  R.  60,  9  1062. 
signature  of  solicitor  to  pleadings,  certificate  that  pleadings  not  interposed 
for,  Eq.  R.  24,  9  699. 

DELIVERY,  depositions  de  bene  esse,  into  court,  9  383. 

DELIVERY  BOND,  attachment,  9  492. 

DELIVERY,  OF  POSSESSION,  writ  of  assistance  to  enforce,  Eq.  R.  79,  9  1118. 

DEMAND,  to  admit  execution  and  genuineness  of  documents,  9  940. 

DEMANDS,  joint  and  several,  Eq.  R.  42,  9  723. 
Manual — 69 


1090  INDEX. 

DEMUKRERS  abolished,  Eq.  R.  29,  §  900. 

bankruptcy   in,   abolished,  §  881. 

DEPARTMENT   OF  INTERIOR,  copies  as  evidence,  return   of  contract  tft 
Returns  Office  of  Department,  §  294. 

DEPARTMENTS, 

claims  referred  by,  §  1432. 

evidence  from,  in  court  of  claims,  §  1434. 

witnesses  in  claim  cases,  subpoena,  §  354, 

DEPOSITIONS,  chs.  16,  48. 

after  cases  on  trial  calendar,  §§  677,  1030,  1031. 
anti-trust  cases,  publicity  in  taking,  §  396. 
attendance  of  witnesses, 

de  bene  esse,  §  378. 

exemption  from,  under  commission,  §  385. 

to  be  used  in  foreign  country,  §  394. 

under  commission,  §  386. 
before  issue,  §  671. 

books,  production  of,  on  deposition  under  a  commission,  §  387. 
commission,  under  a,  §  384  et  seq. 
Commissioner,  before  a,  §  390. 
commissioner,  before  a,  notice  of,  §  391. 
conditions  for  taking  and  using  de  bene  esse,  §  375. 

under   commission,  §  384. 
court,  delivery  into,  de  bene  esse,  §  383. 

court  to  deal  with  costs  of  incompetent,  etc.,  Eq.  R.  51,  §  381. 
cross-examination,  Eq.  R.  54,  §  370. 
de  bene  esse,  §  375  et  seq. 

dedimus  potestatem,  depositions  under  commission,  §  384  et  seq. 
deemed  published  when  filed,  Eq.  R.  55,  §  372. 
delivery,  de  bene  esse,  into  court,  §  383. 

documents,  production  of,  taking  deposition  under  commission,  §  387. 
equity  suits,  §§  863,  1001. 

grounds  for  taking,  §  374. 

objections  to  depositions,  rule,  §  381.  /&'4 

publication  of  depositions,  §  392. 

signing  depositions,  rule,  §  380. 

time  for  taking  depositions,  §§  372,  373. 
examiner,  before,  §  390. 
expense  of  taking  to  be  advanced  by  party  calling  witnesses,  Eq.  R.  50, 

§  1044. 

after  issue,  §  373. 

filing  as  publication  in  equity,  §  392. 
foreign  country,  letters  rogatory,  §  393. 


INDEX.  1091 

DEPOSITIONS  (Continued). 

to  be  used  in,  §  394. 
form  of,  in  equity,  rule  as  to,  §  380. 

de  bene  esse,  §  375. 

general  statement,  §  370. 

under  commmission,  §  384. 

former,  may  be  used  before  master,  Eq.  E.   64, 1  IOCS, 
good  and  exceptional,  cause,  §  1021. 
grounds,  depositions  in  equity,  §  374. 
issue,  depositions  in  equity  after,  §  378. 
laws  actions, 

generally,  §  460. 

time  for  taking,  f  371. 
letters  rogatory,  §  393. 
master  in  chancery,  before,  §  390. 
may  be  taken  by  master,  Eq.  R.  62,  §  1063. 
mode  of  taking  de  bene  esse,  §  379. 
motion  to  suppress  illustrated,  §  1022. 
notice,  before  commissioner,  examiner  or  master,  5  39L 

de  bene  esse,  §  377. 
objections  to,  in  equity  suit,  §  381. 
officers,  de  bene  esse  before,  §  396. 

on  expiration  of  time  for,  case  goes  on  trial  calendar,  Eq.  B.  56,  §  677. 
papers,  production  of,  on  deposition  under  commission,  §  387. 
perpetuation  of  testimony,  depositions  taken  under  state  laws,  §  388. 
previously  used  in  court  may  be  used  before  master,  Eq.  B.  64,  §  1063. 
production  of  books,  etc.,  on  depositions  under  a  commission,  §  387. 
provisional,  see  De  Bene  Esse,  §  375  et  seq. 
publication  in  equity  on  filing,  §  392. 
rule,  form  in  equity,  §  380. 

objections  in  equity,  §  381. 

signing  in  equity,  §  382. 
signing  in  equity,  §  382. 

state1  laws,  taken  under,  to  perpetuate  testimony,  when  admissible,  §  388. 
state  laws  prescribed  by,  §  389. 
taken  before  examiners,  etc.,  Eq.  B.  49,  §  380. 
testimony,  compelling  for  depositions, 

depositions  to  be  used  in  foreign  country,  $  394. 

perpetuation  of,  under  state  laws,  §  388. 

under  a  commission,  §  386. 

witnesses,  see  that  beading  and  below. 
time,  depositions  in  equity,  §  372. 
time  for,  §  1022. 
time   for,  extending,  §  1023. 

at  law,  §  371. 
time  within  which  to  be  taken,  Eq.  B.  47.  eh.  48. 


1092  INDEX. 

DEPOSITIONS  (Continued). 

to  be  identified  but  not  set  forth  in  master's  report,  Eq.  B.  61,  §  1070. 

to  be  taken  in  exceptional  instances,  Eq.  B.  47,  §  1040,  ch.  48. 

trial  calendar,  after  case  on,  §§  1030,  1031. 

under  Bev.  Stats.  863,  865,  866,  867 — cross-examination,  Eq.  B.  54,  §  372. 

witnesses, 

attendance  de  bene  esse,  §  378. 
attendance  under  commission,  §  386. 

exemption  under  commission,  §  385. 
to  be  used  in  foreign  country,  §  394. 
depositions  de  bene  esse,  §  378. 
depositions  under  commission,  §§  386,  387. 
fees  for  depositions,  District  of  Columbia,  §  420. 
foreign  country,  letters  rogatory,  §  393. 

depositions  to  be  used  in,  §  394. 

fncriminafcion,  depositions  to  be  used  in  foreign  country,  §  395. 
written  instruments,  production  of,  depositions  under  commission,  §  387. 

DEPUTY  CLEBKS, 
C.  O.  A.  §  1471. 
district  courts,  §  28. 
Supreme  court,  §  1530. 

DEPUTY  MABSHAL,  district  court,  §  30. 

DESIGNATION, 

additional  district  judge, 

accumulation  of  business,  §  25. 
fttoaage  of,  §  21. 
chief  justice's,  §  26. 
disability  of  incumbent,  §  24. 

DESTBOYED  BECOBDS,  see  Lost  or  Destroyed  Becords. 

DETENTION, 

letters  carried  contrary  to  law,  §  1715. 
same,  disposal  of,  §  1716. 

DIAGEAM8, 

circuit  court  of  appeals, 

Bule  34  C.  C.  A.  Appendix. 

Bule  32  C.  C.  A.  (3d,  7th,  8th,  9th  Circuits)  Appendix. 

DIFFEBENCES, 

bill  in  federal  and  state  courts,  §  691. 
complaint  at  law,  federal  and  state,  §  470. 
complaint  in  equity,  federal  and  state,  §  69L 


INDEX.  1093 

DIFFERENCES  (Continued). 

concerning  directions  as  to  content*  of  record  on  appeal,  provisions  as  to, 

Eq.  R.  75,  9  1671. 

law  and  equity  in  federal  courts,  5  6. 
Btate  and  federal  practice,  99  7.  10. 

DIMINUTION  OF  RECORD,  §  1689. 

DIRECT  APPEAL  TO  SUPREME  COURT,  one  record  sufficient  for  both 
parties,  §  1673. 

DIRECTION,  habecu  corpus  writ,  §  1335. 

DISABILITY  OF  ANY  PARTY,  to  be  stated  in  bill,  Eq.  R.  25,  §  692. 

DISABILITY  OF  DISTRICT  JUDGE,  designation  of  another  judge,  9  22. 

DISCHARGE  FROM  ARREST, 

execution,  conforms  to  state  laws  in  civil  actions,  g  637. 
indigent  convicts  imprisoned  for  fines,  §  1385. 
poor  debtor,  in  government  suit,  99  638,  639. 
seamen,  9  HO. 

DISCOVERY,  Eq.  R.  58,  99  270,  670,  940,  962.    See  also  Interrogatories,  Pro- 
duction of  Books  etc.,  Evidence,  Depositions,  Witnesses. 

act  for  national  security,  9  360. 

at  law,  9  571. 

evidence  not  obtainable  by,  99  944,  948. 

in  equity, 

after  issue,  9  670. 
answer  in  equity,  9  940. 
before  issue,  9  662. 

by  defendants,  9  670. 
by  plaintiff,  9  662. 

interrogatories  for,  when  to  be  filed,  Eq.  R.  58.  5  940. 

investigations  under  act  stimulating  agriculture,  9  360. 

mandamus  under  interstate  commerce  act,  9  1718. 

procedure  not  principles  altered,  9  941. 

rules  not  altered,  9  941. 

DISCRETION, 

amendment  of  writ  of  error.  9  1659. 
bill  of  particulars,  99  922,  923. 
depositions,  time  for,  9  1022. 
extending  time  for,  9  1023. 

DISMISS,  motion  to,  setting  down  for  hearing,  Eq.  R.  29.  85  8?n.  MO. 
see  Motion  to  Dismiss,  below. 


1094  INDEX. 

DISMISSAL, 

answer  as  a  plea,  on  sustaining,  f  904. 

defendant  by,  see  Motion  to  Dismiss. 

failure  to  produce  documents,  Eq.  R.  58.  §§  270,  670,  940,  &02. 

law  actions,  §  573. 

cases  fraudulently  or  improperly  removed,  §  215. 
motion  to  dismiss,  see  that  heading, 
not  by  plaintiff  after  master's  report  filed,  §  1131. 
plaintiff  by,   ch.    55,  §  1130. 
without  prejudice,  §  1130. 

DISMISSAL  BY  PLAINTIFF,  ch.  55. 

DISMISSAL  OF  APPEALS,  §  16S8. 
circuit  court  of  appeals, 

Rule  20  C.  C.  A.  Appendix. 

Rule  19  C.  C.  A.  (3d  Circuit)  Appendix. 

DISMISSAL  OF  CAUSES  continued,  if  not  reinstated,  Eq.  R.  57,  §  679. 
DISPOSAL,  letters  seized  as  carried  contrary  to  law,  §  2242. 
DISPOSITION,  party,  habeas  corpus,  §  1341. 

DISQUALIFICATION,  re  practice  in  court  of  claims,  §  1430. 
judge,  §  26. 

DISSOLUTION, 

attachment,  §  494. 

injunction  on  distress  warrant  against  officer  for  failure  to  account  for 

public  moneys,  §  1120. 
temporary  restraining  order,  §  1105. 

DISTRESS  WARRANT,  injunction  on,  against  officer  for  failure  to  account 
for  public  moneys,  §§  1119,  1120. 

DISTRIBUTING  RECORDS,  Rule  23  C.  C.  A.  (3d  Circuit)  Appendix. 

DISTRICT,  see   also   Districts, 
different,  of  same  state,  §  64. 
subpoena  for  witnesses  in  another,  §  342. 
venue,   crimes,  §  75. 

venue,  on  creation  of  new,  or  division,  §  69. 
venue,  subject  matter  partly  in,  §  65. 

DISTRICT  ATTORNEY, 
assistant,  §  34. 
counsel  to  aid,  §  33. 


INDEX.  1095 

DISTRICT  ATTORNEY   (Continued). 
district  court,  §  33. 
fees  of,  §  411. 
witnesses,  recognizance  of,  in  criminal  cases,  $  342. 

DISTRICT  COURT, 

accumulation  of  business,  disposal  of,  §  22. 
action  at  law,  see  that  heading,  ch.  15. 

rules  governing,  §  57. 
additional  judges,  assignment  of,  §  22. 

designation  of,  §  22. 

duties  and  powers,  §  26. 
additional  rules  by.  §§  8,  58. 
adjournments,  when  judge  absent,  §  51. 

monthly  to  expedite  criminal  cases,  §  51. 
admisssion  to  practice,  §  56. 
affidavit,  bias  or  prejudice  of  judge,  §  25. 
amount  in  controversy,  see  that  heading,  eh.  8. 
appeals, 

circuit  court  of  appeals,  §  1501. 
time  for,  §  1653. 

direct  to  Supreme  Court,  §  1551. 

direct  to  Supreme  Court,  time  for,  §  1652. 

interlocutory  orders  to  circuit  court  of  appeals,  §  1502. 

receivership  proceeding  to  circuit  court  of  appeals,  §  1502. 
appellate  jurisdiction,  §§  90,  104,  105,  107. 
appointment  of  additional  judges,  change  of,  §  27. 
assignment  of  additional  judges,  §§  22,  25. 
assistant  district  attorneys  in,  §  34. 
bailiffs  of,  §  32. 
bias  of  judge  of,  §  25. 

bureau  of  war  risk  insurance,  compelling  attendance  of  witnesses,  §  361. 
business  divided  between,  §  21. 

disposal  of  accumulated,  §  22. 

Canal  Zone,  appellate  jurisdiction,  5th  Cir.,  §  1507. 
change  in  appointments  of  judges  of,  §  22. 
chief  justice  may  assign  additional  judge  of,  9  22. 
circuit  judges  act  as  judges  of,  9  23. 
clerks  of,  §  28. 
commissioners  of,  §  35. 

concurrent  jurisdiction  with  state  court,  55  90.  93. 
continuances  when  judge's  office  vacant,  S  434. 
criers  of,  §  32. 
court  rules,  admisssion  to  practice,  9  56. 

equity  suits,  §  58. 

law  actions,  5  57. 
criminal  cases,  monthly  adjournments  to  expedite,  $  W. 


1096  INDEX. 

DISTRICT  COURT  (Continued), 
decisions,  reports  of,  §  55. 
deputy  clerks  of,  §  28. 
deputy  marshals  of,  §  30. 
designation  of  additional  judges  of,  §  22. 
disability  of  judge,  substitution,  §22. 
districts,  see  that  heading,  eh.  5,  Jud.  Code,  Appendix, 
district  attorneys  in,  §  33. 
division  of  business  between,  §  21. 

duties  and  powers  of  additional  or  substituted  judges  of,  §  29. 
equity  suits,  rules,  §  58. 

exclusive  jurisdiction  from  state  court,  §§  90,  93. 
field  deputies  of  marshals  in,  §  31. 
food  products  and  fuel,  §  1725. 
generally,  §§4,  20. 
income  tax  law,  §  24. 

injunctions,  appeals  in,  to  circuit  court  of  appeals,  §  1502. 
interest  of  judge  of,  §  25. 
judges,  see  District  Judges. 

number  in  several  districts,  §  20. 
judicial  districts,  ch.  5,  Jud.  Code,  Appendix. 

officers,  ch.  2. 

jurisdiction,  see  that  heading, 
jurisdiction  in  general,  §  4. 

jurisdiction,  arbitration  disputes  common  carriers  and  employees,  §  114. 
jurisdiction,  original  and  appellate,  eh.  5. 
law  actions,  rules,  §  57. 
marshals  of,  §  29. 
marshal's  field  deputies  in,  §  31. 
number  in  the  several  states,  see  headings  various  states,  ch.  5,  Jud.  Code, 

Appendix. 

number  of  judges  in  several  districts,  §  20. 
officers,  ch.  2. 
organization  of,  ch.  2. 
organization,  further  as  to,  ch.  3. 

special  terms,  adjournments,  continuances,  records, 

reports  of  decisions,  rules  in  law  and  equity,  eh.  3. 
original  and  appellate  jurisdiction,  eh.  5. 
original  jurisdiction,  §§  90,  94. 
places  for  holding,  ch.  5,  Jud.  Code,  Appendix. 

see  under  heading  various  states. 

.powers  and  duties  of  additional  or  substituted  judges  of,  9  26. 
practice,  admission  to,  §  56. 
prejudice  of  judge  of,  §  25. 
procedure,  see  that  heading, 
procedure  when  interest  or  relationship  of  judge  appears,  §  25. 


INDEX.  1097 

DISTRICT  COURT  (Continued). 

production  of,  books,  etc.,  §  361.  <  *.> 

receiverships,  appeals  in,  to  circuit  court  of  appeals,  §  150&, 
reclamation  act,  §  112. 
records,  place  for  keeping,  }  54. 

transfer  of  territorial,  §  54. 
removal,  see  that  heading,  ch,  9. 
reports  of  decisions,  §  55. 
rules,  admission  to  practice,  §  56. 

law  actions,  §  57. 
rules  equity  suits,  §  58. 
special  terms,  §  51. 

states,  places  of  holding  court  in,  ch.  5,  Jud.  Code,  Appendix, 
substitution  of  judges  for  disability  of  one,  §  22. 
substitution   of   judges   of,   when   interest    or   relationship    of    incumbent 

appears,  §  25. 

substitution  of  judges  in,  when  bias  or  .prejudice  shown,  §  25. 
suits  in  equity,  rules,  9  58. 
terms, 

altering,  does  not  affect  proceedings  of,  §  51. 

judicial  district,  ch.  5,  Jud.  Code,  Appendix. 

special,  §  51. 
time  for  appeal, 

to  circuit  court  of  appeals,  §  1653. 

to  Supreme  Court,  §  1652. 
time  and  places  for  holding  court  in  the  several  districts,  ch.  5,  Jud.  Code, 

Appendix. 

see  under  Loadings  of  the  several  states. 
trials,  conclusion  of,  in  new  term,  §  51. 
United  States  district  attorney  in,  9  33. 
venue,  see  that  beading, 
when  open,  §§  52,  61. 
writs,  power  to  issue,  9  1100. 
writ  of  error  to  circuit  court  of  appeals,  9  1501. 

time  for,  9  1653. 
writ  of  error  to  Supreme  Court,  time  for,  9  1652. 

DISTRICT  COURT  OF  ALASKA,  procedure  on  appeal   to  Supreme   Court, 
1 1679. 

DISTRICT  COURT  OF  PORTO  RICO,  procedure  on  appeal  from,  9  1680. 

DISTRICT  COURTS,  see  Court,  and  District  Court,  above, 
additional  rules  by,  Eq.  R.  79,  §§  8,  58. 
always  open  for  certain  purposes,  Eq.  R.  1,  9  660. 

to  establish  times  and  places  when  motions  may  be  made  and  disposed 
of,  Eq.  R.  6,  9  821. 


1098  INDEX. 

DISTRICT  JUDGE, 

accumulation  of  business,  disposal  of,  §  25. 
additional,  assignment  of,  §  22. 

designation  of,  §  26. 

disability  of  incumbent,  §  22. 
affidavit  bias  or  prejudice,  §  25.  N 

appointment,  accumulation  of  business,  §  22. 

change  of,  §  22. 

chief  justice's,  §  22. 

disability  of  incumbent,  §  22. 
bias  or  prejudice,  affidavit  of,  §  25. 
circuit  judge  acting  as,  §  23. 
designation  of  additional,  §§  22,  24,  25. 
disability,  designation  of  another  judge,  §  22. 
distribution  of  business,  §  21. 

duties  and  powers  of  additional  or  substituted  judge,  §  28. 
interest  of  incumbent,  outside  judge,  §  25. 
may    make,    direct,    and    award    process,   commissions,    orders,   rules,    etc., 

Eq.  R.  1,  §  822. 

number  of,  in  the  several  districts,  §  20. 
prejudice,  affidavit  of  bias  or,  §  25. 
procedure,  bias  or  prejudice  of  incumbent,  §  25. 

'interest  or  relationship  of  incumbent,  §  25. 
relationship  of  incumbent,  outside  judge,  §  25. 
vacancy  in  office,  continuance,  §  51. 

DISTRICT   OF  COLUMBIA, 

appeal  and  error  to  Supreme  Court,  §  1561. 
appellate  procedure,  §  1682. 
certification  to  Supreme  Court,  §  1683. 
diverse  citizenship,  not  a  citizen,  §  142. 
procedure  on  appeal  from  court  of  appeals,  §  1682. 
prohibition  laws,  civil  action  for  injuries,  §  1726. 
prohibition  laws,  injunction  against  violation  of,  §  1121. 
prima  facie  evidence,  §  315. 

DISTRICTS, 

see  also  Judicial  District's,  ch.  5,  Jud.  Code,  Appendix. 

Alabama,  §  70,  Jud.  Code,  Appendix. 

Arkansas,  §  71,  Jud.  Code,  Appendix. 

Arizona,  Act  Oct.  3,  1913,  ch.  17,  following  §  71,  Jud.  Code,  Appendix. 

California,  §  72,  Jud.  Code,  Appendix. 

C.  C.  A.  circuits,  §  1470. 

Colorado,  §  73,  Jud.  Code,  Appendix. 


INDEX.  109U 

DISTRICTS   (Continued). 

Coanecticut,  §  74,  Jud.  Code,  Appendix. 

Delaware,  §  75,  Jud.  Code,  Appendix. 

Florida,  §  76,  Jud.  Code,  Appendix. 

Georgia,  §  77,  Jud.  Code,  Appendix. 

Idaho,  §  78,  Jud.  Code,  Appendix. 

Illinois,  §  79,  Jud.  Code,  Appendix. 

Indiana,  §  80,  Jud.  Code,  Appendix. 

Iowa,  §  81,  Jud.  Code,  Appendix. 

Kansas,  §  82,  Jud.  Code,  Appendix. 

Kentucky,  §  83,  Jud.  Code,  Appendix. 

Louisiana,  §  84,  Jud.  Code,  Appendix. 

Maine,  §  85,  Jud.  Code,  Appendix. 

Maryland,  §  86,  Jud.  Code,  Appendix. 

Massachusetts,  §  87,  Jud.  Code,  Appendix. 

Michigan,  §  88,  Jud.  Code,  Appendix. 

Minnesota,  §  89,  Jud.  Code,  Appendix. 

Mississippi,  §  90,  Jud.  Code,  Appendix. 

Missouri,  §  91,  Jud.  Code,  Appendix. 

Montana,  §  92,  Jud.  Code,  Appendix. 

Nebraska,  §  93,  Jud.  Code,  Appendix. 

Nevada,  §  94,  Jud.  Code,  Appendix. 

New  Hampshire,  §  95,  Jud.  Code,  Appendix. 

New  Jersey,  §  96,  Jud.  Code,  Appendix. 

New  Mexico,  §  13,  Act  June  20,  1910,  ch.  310,  following  §  98,  Jud.  Code, 

Appendix. 

New  York,  §  97,  Jud.  Code,  Appendix. 
North  Carolina,  §  98,  Jud.  Code,  Appendix. 
North  Dakota,  §  99,  Jud.  Code,  Appendix. 
Ohio,  S  100,  Jud.  Code,  Appendix. 
Oklahoma,  §  101,  Jud.  Code,  Appendix. 
Oregon,  §  102,  Jud.  Code,  Appendix. 
Pennsylvania,  §  103,  Jud.  Code,  Appendix. 
Rhode  Island,  §  104,  Jud.  Code,  Appendix. 
South  Carolina,  §  105,  Jud.  Code,  Appendix, 
South  Dakota,  §  106,  Jud.  Code,  Appendix. 
Tennessee,  §  107,  Jud.  Code,  Appendix. 
Texas,  §  108,  Jud.  Code,  Appendix. 
Utah,  §  109,  Jud.  Code,  Appendix. 
Vermont,  §  110,  Jud.  Code,  Appendix. 
Virginia,  §  111,  Jud.  Code,  Appendix. 
Washington,  §  112,  Jud.  Code,  Appendix. 
West  Virginia,  §  113,  Jud.  Code,  Appendix. 
Wisconsin,  §  114,  Jud.  Code,  Appendix. 
Wyoming,  f  115,  Jud.  Code,  Appendix. 


1100  INDEX. 

DIVERSE  CITIZENSHIP, 
aliens,  §  152. 

bond  in  removal  cases,  §  196. 
change  of  citizenship  to  give  jurisdiction,  |  156. 
change  of  domicile  after  suit  commenced,  §  154. 
collective  term,  §  153. 

commencement  of  suit,  change  of  domicile  afterwards,  §  155. 
constitutional  provision,  §  3. 
corporations,  §  144. 
defined,  §  141. 

District  of  Columbia  citizens  not  meant,  §  142. 
domicile, 

change  of,  in  cases  of  diverse  citizenship,  §  155. 

change  of,   after  suit   commenced,  §  155. 
federal  question  does  not  involve,  §  127. 
ground  of  jurisdiction,  ch.  7. 
guardians,  §  151. 
Indians,  §  152. 
issue  how  raised,  §  159. 
joint  stock  companies,  §  145. 
jurisdiction, 

basis  for,  §  1,  ch.  7. 

change  of  domicile  after  suit,  §  155. 

federal  courts,  §  1. 

married  women,  §  148. 

national  banks,  §  147. 

parties,  shifting  of,  to  create,  §  157. 

partnerships,  §  146. 

personal  representatives,  §  149.  „ 

shifting  parties  to  create,  §  157. 

transfer  of  subject  matter  to  create,  §  156. 

venue  as  affecting,  §  158. 
removal  of  causes,  §§  191,  192. 

remanding  or  dismissing  cases  fraudulently  or  improperly  removed,  |  215. 
representatives,  §  149. 
shifting  parties  to  create,  §  157. 
states  not  citizens,  §  143. 

subject  matter,  transfer  of,  to  give  jurisdiction,  §  156. 
territorial  citizens  not  meant,  §  142. 
territories  not  citizens,  §  143. 

transfer  of  subject  matter  to  give  jurisdiction,  §  156. 
'    trial,  want  of,  appearing,  §  160. 
trustees,  §  150. 

venue  affected  by,  in  cases  involving  federal  question,  §  127. 
venue  as  affecting  jurisdiction,  §  158. 


INDEX.  HOI 

DIVERSE  CITIZENSHIP  (Continued). 
what  is,  9  141. 
when  want  of,  appears  on  trial,  §  160. 

DIVERSITY  OP  CITIZENSHIP, 

assignment  to  get  diversity,  S  24,  Jud.  Code,  §  97. 
form  of  motion  to  dismiss  in  such  case,  9  159. 

DIVISION  OF  BUSINESS  DISTRICT  COURT,  §  21. 
DOCKET,  circuit  court  of  appeals,  Rule  17  C.  C.  A.  Appendix. 

DOCKETING,  cases  in  circuit  court  of  appeals,  Addenda  Rule  45  C.  C.  A. 
Appendix,  Rule  16  C.  C.  A.  Appendix. 

DOCUMENT, 

execution  or  genuineness  of,  call  for  admission  of,  Eq.  R.  58,  §  940. 
identified  but  not  set  forth  in  master's  report,  Eq.  R.  61,  S  1070. 

DOCUMENTS, 

attachment  may  issue  for  failure  to  produce,  Eq.  R.  58,  §  940. 

bill  may  be  dismissed  for  failure  to  produce,  Eq.  R.  58,  §  940. 

costs  of  proving  execution  or  genuineness,  Eq.  R.  58,  §  940. 

court  may  enforce  inspection  and  production  of,  Eq.  R.  58,  §§  270,  670,  571. 

demand  to  admit  execution  and  genuineness,  §  940. 

deposition  under  commission,  production  of,  §  387. 

inspection  and  production,  Eq.  R.  58,  §§  940,  571. 

interrogatories  for  discovery  of,  when  to  be  filed,  Eq.  R.  58,  §  940. 

previously  used  in  court  may  be  used  before  master,  Eq.  R.  64,  j  1063. 

production  of,  on  deposition  under  commission,  9  387. 

production  of,  required  by  master,  Eq.  R.  62,  S  1063. 

production  refused,  answer  may  be  stricken  out,  Eq.  R.  58,  S  940. 

DOMESTICS  OF  AMBASSADORS,  ETC.,  Supreme  Court,  suite  against,  in, 
9  1534. 

DOMICILE,  §  141. 

DRAFTING  DECREE,  9  1142. 

DRAWING  JURY,  trial  law  actions,  place  from  where,  9  588. 

DUE  PROCESS  OF  LAW,  federal  question,  S  126. 

DUTIES, 

bail  in  suit  for,  9  1273. 
clerk's,  Eq.  R.  2,  Appendix 


1102  INDEX. 

DUTIES  (Continued). 

see  Customs  duties;   Jurisdiction  district  court,  5  1W» 

interest,  kind  of  money  payable  in  suits  for,  §  624. 

marshal's,  Eq.  R.  15,  §  796. 

master's,  Eq.  R.  60,  §  1062. 

special  bail  in  suit  for,  §  1273. 

statute  of  limitations  for  violation  laws,  §§  239,  240. 

DUTIES  OP  MARSHAL,  Supreme  Court,  §  1530. 

DUTIES  OP  REPORTER,  Supreme  Court,  §  1531. 

DUTY,  removal  of  causes,  state  court  on,  §  197. 

DWELLING-HOUSE,  service  of  subpoena  by  leaving   copy  at,  Eq.  B.   13, 


B. 

EFFECT, 

answer  in  equity,  55  960,  962. 

counterclaim  in  equity,  §§  980,  981. 

failure  to  plead  counterclaim  or  setoff,  §  983-. 

setoff,  55  980,  981. 

valid  setoff  or  payment  on  amount  in  controversy,  §  177. 

verdict,  5  611. 

EMBARGO,  seizure  for  venue,  5  79. 

EMPLOYERS'  LIABILITY  ACT, 

removal  of  causes,  common  carrier,  cases  are  not  removable,  §  204. 
statutes  of  limitations,  5  248. 

ENEMY, 

statute  of  limitations  under  trading  with  the  enemy  act,  §  1721. 
trading  with  the  enemy,  see  that  heading,  §  1721. 

ENFORCEMENT, 

decree,  equity  suits,  5  1143. 
decree,  conditionally,  5  1144. 
injunction,  5  1112. 

ENFORCEMENT  OP  DECREES,  Eq.  B.  8,  §§  473,  1112,  1143. 

ENFORCEMENT  OF  LIEN,  upon  creation  or  transfer  of  district  or  terri- 
tory, venue,  5  70. 


INDEX.  1103 

ENFORCING  ATTENDANCE, 

see  also  Witnesses,  subhead  Attendance, 
depositions,  de  bene  esse,  of  witnesses,  §  378. 

for  foreign  country,  of  witnesses,  §  394. 

under  commission,  of  witnesses,  §  386. 
witnesses  for  depositions  de  beiie  ease,  §  378. 

for  foreign  country,  §  394, 

under  commission,  §  386. 

ENFORCING    TESTIMONY    OP    WITNESSES,   tee    Witnesses,    Testimony, 
§§  346,  352,  355,  357. 

ENTRY,  decree,  §  1142. 

ENTRY  OF  ORDERS,  Bq.  B.  3,  Appendix. 

EQUAL  PROTECTION  OF  THE  LAWS,  federal  question,  {  124. 

EQUITABLE  DEFENSE,  law  actions,  §  545. 

EQUITY,  see  various  headings  names  of  pleadings  as  Bill,  answer,  etc. 
bankruptcy  proceedings  are  in,  §  881. 
bill  of  review,  ch.  68. 
depositions,  ch.  48. 
discovery,  ch.  43. 
injunctions,  ch.  54. 
joinder  legal   and   equitable   not  permitted  to  make    up   jurisdictional 

amount,  §  864. 

jurisdiction,  suit  against  receiyers,  §  1083. 
law  action  transferred  to  law  side,  ch.  37. 
legal  relief  in,  ch.  38. 
parties,  ch.  27. 
receivers,  ch.  53. 
rehearing,  ch.  57. 
reply,  ch.  47. 
reviver,  ch.  33. 
stockholder's  suit,  ch.  29. 
transferring  to  law  side,  ch.  37. 

EQUITY  COURT,  open  when,  §  58. 

EQUITY  DOCKET, 

appearance  noted  in,  Eq.  R.  3,  Appendix 

clerk  to  keep,  Eq.  R.  3,  Appendix. 

day  of  return  of  master's  report  to  be  entered  in,  Eq.  B.  M,  §  107§. 

index  of,  Eq.  R.  3,  Appendix. 

noting  of  order  in,  not  notice,  Eq.  R.  4,  §  825. 


1104  INDEX. 

EQUITY  JOURNAL, 

clerk  to  keep,  Eq.  R.  3,  Appendix, 
index  of,  Eq.  R.  3,  Appendix. 

EQUITY  PROCEDURE,  see  Equity  Suit. 

EQUITY  RULE'S,  set  out  in  full  in  Appendix,  p.  971  et  seq. 

EQUITY  SUIT, 

action  at  law  erroneously  begun  as — transfer,  Eq.  R.  22,  §  472,  ch.  37. 

adjournment,  see  Continuances,  §  1671. 

amended  bill,  time  to  answer,  §  668. 

answer  (see  that  heading,  ch.  44),  time  for.  §  665. 

after  overruling  motion  to  dismiss,  §  667. 

time  for,  to  amended  bill,  §  668. 
better  statement,  obtaining,  §  920. 
bill  (see  Bill  in  Equity,  ch,  26)   amendment,  time  for  answer,  §  668. 

general  statement,  §  660. 
calendar,  reinstatement  of  case  on,  §  679. 

trial,  §  676. 

certainty,  obtaining,  §  920. 
continuances,  §  678. 
counterclaim  or  setoff  (see  that  heading),  §§  980,  981,  982,  983. 

issue,  §  675. 

reply  to,  §  674. 

time  for  serving  copy  of,  §  672. 
cross-bill  now  in  the  counterclaim,  §  982. 
damages  in,  §  861. 
decree,  see  that  heading,  eh.  56. 
decree  pro  confesso,  see  that  heading,  ch.  35. 
defect  of  parties  in,  §  824. 

defense,  see  Decree  Pro  Confesso,  ch.  35,  Answer  in  Equity,  chs.  40  and  44. 
defense  in  point  of  law,  chs.  39,  and  40. 
defense,  motion  to  strike  out,  §  673. 
defensive  pleading,  see  that  heading,  §  850,  ch.  36. 

kinds  of,  §  820. 

law,  defense  in  point  of,  ch.  39. 

motion  to  strike,  §  673. 

time  for,  §  665. 
denniteness,  to  obtain,  §  920. 
depositions  (see  that  heading,  eh.  16)   after  issue,  §  373. 

after  case  on  trial  calendar,  §  677. 

before  issue,  §  671. 
differences  from  law,  §  6. 
discovery,  see  that  heading. 


INDEX.  1105 

EQUITY  SUIT  (Continued). 

after  issue,  §  670. 

before  issue,  §  662. 

by  defendant,  §  670. 

by  plaintiff,  §  662. 

time  for,  §§  662,  670. 
evidence,  see  that  heading,  eh.  1L 

in, §  1043. 
form  of,  rule,  §  380. 

grounds  for  taking,  9  504. 

objections,  rule,  §  381. 

publication  or  filing,  9  392. 

signing,  rule,  §  380. 

time  for  taking,  §§  372,  373. 
form  of  deposition,  rule,  5  3*80. 
forms  in,  see  that  heading, 
grounds  for  taking  depositions,  §  374. 
hearing,  motion  to  dismiss,  §  666. 

motion  to  strike  out  defense,  §  673. 

trial  calendar,  9  678. 
impertinent  matter,  removal  of,  §  930. 
interrogatories  by  defendant,  i  670. 

by  plaintiff,  §  662. 

time  for,  §§  662,  670. 
irrelevant  matter,  removal  of,  §  930. 
issue,  depositions  after,  9  373. 
issue  in,  see  that  heading, 
issue  when  no  counterclaim  or  setoff,  9  669. 

when  counterclaim  or  setoff  pleaded,  §  675. 
jury  in,  9  862. 

lawsuit  begun  as,  9  472,  ch.  37. 
legal  relief  in,  9  860. 

masters  in  chancery,  see  that  heading,  ch.  51. 
matters  ordinarily  determinable  at  law  when  arising  in,  to  be  disposed 

of  therein,  Eq.  B.  23,  ch.  38. 

motion,  see  under  Decree  Pro  Confesso,  ch.  35;  Motions  and  Pleadings, 
motion  to  dismiss,  9  666. 

time  for  answer  after  overruling,  9  667. 
motion  to  strike  out  defense,  9  673. 
motion  to  transfer  to  law  side,  ch.  37.  . 

objections  to  depositions,  9  381. 
orders,  notices  of,  9  825. 
particulars,  obtaining,  9  920. 
pleading  in,    see  under  headings   of   various   pleadings,   and   the   general 

heading,  Pleading. 

Manual— 70 


1106  INDEX. 

EQUITY  SUIT  (Continued), 
possession   in,  }  861. 

practice,  summary  of  proceedings,  ch.  25. 
precipe  for  subpoena,  general  statement,  §  661. 
proceedings  in,  summary,  ch.  25. 
publication  of  deposition  on  filing,  §  392. 
redundant  matter,  removal  of,  §  930. 
reinstatement  case  on  calendar,  §  67&. 

removal  of  redundant,  scandalous,  or  impertinent  matter,  §  930. 
reply  to  counterclaim  in  equity,  §  1010. 
%    reply,  time  for,  §  674. 
return  of  subpoena,  §  664. 
rule  as  to  form  of  deposition,  §  380. 

objections  to  deposition,  §  381. 

signing  deposition,  §  512. 
rules  governing,  §  58. 

summary  of  proceedings,  ch.  25. 
scandal,   removal   of,  §  930. 
setoff,  see  heading  Counterclaim, 
signing  depositions,  §  382. 
statement,  better,  and  particulars,  §  920. 
subpoena  for  defendants,  general  statement,  §  661. 

return  of,  §  664. 
summary  of,  ch.  25. 

supplemental  pleading,  see  that  heading, 
time  for, 

answer  after  overruling  motion  to  dismiss,  §  666. 

counterclaim,  §  672. 

defensive  pleadings,  §  665. 

depositions,  §§  372,   663,   671,  677. 

discovery,  §§  662,  670. 

hearing,  motion  to  dismiss,  §  666. 

interrogatories,  §§  662,  670. 

issue,  §§  669,  675. 

motion  to  dismiss,  §  665. 

motion  to  strike  out  defense,  §  673. 

pleading,  see  under  headings  various  pleadings,  and  under  heading 
Time. 

reinstatement  of  cases  on  calendar,  §  679. 

reply,  §  674.' 

setoff,  §  672. 

taking  depositions,  §§  372,  663,  671,  677. 
trial,  see  that  heading,  ch.  50. 
trial  by  jury,  when,  §  862. 
trial  calendar,  §  676. 


INDEX.  1107 

ERRONEOUSLY  beginning   in   equity   transfer   law   iide,   Eq.   B.   22, 1 472, 
eh.  37. 

ERROR, 

see  Writ  of  Error, 
assignment  of,  §  1661. 
bill  of  review  to  correct,  1 1180. 
form  of  assignment  of,  9  1662. 

or  defect  in  proceedings,  court  to  disregard  when  not  affecting  substan- 
tial rights,  Eq.  R.  19,  9  760. 
striking  out,  appeal,  9  933. 
time  for  return  of  writ,  9  1675. 
writ  of,  from  state  to  Supreme  Court,  time  for.  §  1655. 

ERROR  TO  STATE  COURT,  see  Removal  by  Writ  of  Error  to  State  Court 
of  Last  Resort,  9  1601. 

ESCAPE,  extradition,  retaking  person  held,  1 1309. 

EVIDENCE,  ch.  14. 

admissibility  of,  in  equity,  9  1043. 

ftdmissibility  of,  to  be  passed  on  by  court,  Eq.  R.  46,  9  1043. 

affidavits  of  expert  witnesses  in  patent  and  trademark  cases,  when  not 

to  be  used  as,  Eq.  R.  48,  99  1041,  1045. 
answer  in  equity  is  not,  9  962. 
answer  not  to  contain,  Eq.  R.  30,  9  964. 
best,  rule  applicable  to  interrogatories,  9  947. 
bill  of  review  for  newly  discovered,  after  term,  9  1180. 
before  master  on  examination  to  be  taken  down,  Eq.  R.  65,  9  1063. 
bound  copies  of  acts  as  evidence,  99  278,  279. 
bonds  and  other  papers  of  United  States  in  settlement  of  accounts  with 

government,  9  290. 

burden  of  proof,  seizure  cases  under  customs  duties  laws,  9  308. 
clerk's  new  records  in  certain  cases,  f  305. 
clerk's  new  records  in  North  Carolina,  9  306. 
commissioner  of  Indian  affairs,  copies  of  records,  9  449. 
competence  not  to  be  determined  by  examiner,  Eq.  B.  51,  9  381. 
Comptroller  of  Currency,  copies  of  records,  9  288. 
congressional  journal,  extracts  from,  9  277. 
consular  records,  copies,  9  304. 
contracts  and  other  papers  of  the  United  States  in  settlement  with  gor. 

eminent,  copies,  9  290. 
copies, 

bonds  in  settlement  accounts  with  government,  |  290. 

clerk's  new  records  in  certain  states,  9  305. 
in  North  Carolina,  9  306. 


1108  INDEX. 

EVIDENCE  (Continued), 
copies    (continued). 

commissioner  of  Indian  affairs,  §  299. 

Comptroller  of  Currency,  records,  §  288'. 

consular  records,  §  304. 

contracts  and  other  papers  of  the  United  States  in  settlements,  §  290. 

congressional  journals,  extracts  from,  §  277. 

currency,  Comptroller's  records,  §  288. 

Department  Interior,  return  of  contract,  §  294. 

Executive  Department  records,  §  286. 

foreign  letters  patent,  §  301. 

foreign  records  filed  in  department  offices  relating  to  land  titles, 

§276. 

Indian  affairs,  copies  of  the  commissioner's  records,  §  299. 
Land  Office  records,  §  297. 
lost  or  destroyed  records. 

judicial,  §  280. 

returns  and  official  papers  of  judicial  officers,  §  284. 

Supreme  Court  records,  §  282. 
national  bank  organization  certificates,  §  289. 
navy  records  in  suits  against  delinquents,  §  291. 
official  papers,  §  284. 

pamphlet  copies  of  statutes  and  bound  copies  of  acts,  §  278. 
%     -patent  office  records,  §§  300,  302. 
patents,  foreign  letters,  §  301. 
postoffice  records,  §§  295,  296. 
printed  and  bound  copies  of  acts,  §  279. 

printed  copies  of  specifications  and  drawings  of  patents,  §  302. 
records, 

clerk's  new,  §§  305,  306. 

Commissioner  Indian  affairs,  §  299. 

Comptroller  of  Currency,  §  288. 

Department  of  Interior,  §  294. 
.  Executive  Departments,  §  286. 

foreign,  filed  in  departments  relating  to  land  titles,  §  276. 

lost  or  destroyed,  §§  280,  285. 

navy,  §  291. 

patent  office,  §§  300-303. 

postoffice,  §§  295,  296. 

public  offices  not  appertaining  to  a  court  in  states  and  terri- 
tories, §  275. 

solicitor  of  treasury,  §  287. 

state,  §  275. 

Supreme  Court,  lost  or  destroyed,  §  282. 

Treasury  Department,  §§  291,  293. 

war,  §  291. 


INDEX. 

EVIDENCE  (Continued), 
records  (continued). 

returns,  copies  of  lost  or  destroyed.  §  284. 

returns,   of  a   contract  to   Return*   Office  Department  of  Interior, 
§  294.- 

solicitor  of  treasury,  §  287. 

state  records, §  275. 

Supreme  Court,  lost  or  destroyed  records,  §  282. 

trademarks,  §  303. 

treasury  records  in  suits  against  delinquents,  §  291. 

treasury  in  embezzlement  suits,  §  293. 

war  records  in  suits  against  delinquents,  §  291. 
court  of  claims, 
court  or  judge  may  enforce  answers  to  interrogatories  and  production 

of  documents  containing,  Eq.  R.  58,  §§  670,  940. 

burden  of  proof,  §  1434. 

examination  of  claimant,  §  1434. 

from  departments  and   congress,  §  1434. 
currency,  copies  of  records  of  Comptroller,  §  288. 
customs  laws,  burden  of  proof,  seizure  cases,  §  308. 
Department  of  Interior,  copies  of  contract  returns,  9  294, 
depositions  in  equity,  ch.  48. 
discovery   ch.  43,  Eq.  R.  58,  §§670,  940. 
examination  of  claimant,  court  of  claims,  5  1434. 
Executive  Department  records,  copies  of,  §  286. 
expert,  interrogatories  not  to  obtain.  §  949. 
extradition  hearing,  §  1307. 

extradition  on,  only  where  establishing  probable  cause,  §  1301. 
federal-  laws, 

evidence  of,  §§  271,  273,  274. 

pamphlet  copies  of  statutes  and  bound  copies  of  acts,  §  278. 
foreign  laws,  §  274. 
foreign  letters  patent,  §  301. 
foreign   records  filed   in   department  offices   relating  to  land   titles   in 

United  States,  §  276. 

from  departments  and  Congress,  in  court  of  claims,  §  1434. 
government  paramount  title  does  not  affect  possessory  action  mining 

title,  §  310. 

how  to  be  stated  in  record,  Eq.  R.  75,  §  1671. 
Indian  affairs,  copies  of  commissioner's  records,  §  299. 
inspection  and  production  of  documents,  etc.,  Eq.  B.  58,  §§  675,  940. 
interrogatories  not   to   obtain,  §§  944,   948. 
jii'licial  notice,  seal  of  Department  Commerce  and  Labor,  §  307. 

judicial  records, 

copies  of  lost  or  destroyed,  §  280. 


1110  INDEX, 

EVIDENCE    (Continued). 

land  office  records,  certification  of,  §  297. 

law  actions,  §  460. 

Little  and  Brown's  statutes,  §  271. 

supplement,  §  272. 

lost  or  destroyed  judicial  recordg,  §  280. 
lost  returns  and  official  papers,  judicial  officers,  §  434. 
lost  Supreme  Court  record,  §  282. 

master  may  direct  mode  of  proving  matters  before  him,  E"q.  R.  62,  §  1063. 
materiality  not  to  be  determined  by  examiner,  Eq.  E.  51.  §  381. 
mere  statement  of,  to  be  omitted  from  bill,  Eq.  E.  25,  §  696. 
motion  to  dismiss  does  not  consider,  §§  883,  1901. 
national  bank  organization  certificates,  §  289. 
navy  records  in  suits  against  delinquents,  §  291. 
objections  to,  Eule  12  C.  C.  A.  Appendix, 
objections,  to,  taken  before  examiner,  etc.,  Eq.  E.  51,  §  381. 
offered  and  excluded,  proceedings  on,  Eq.  E.  46,  §  1043. 
official  papers,  copies  of  lost  or  destroyed,  §  284. 
pamphlet  copies  of  statutes  and  bound  copies  of  acts,  §  278. 
patents, 

copies  of  foreign  letters,  §  301. 
of  letters  patent,  §  300. 
of  trademark  records,  §  303. 

printed  copies  of  specifications  and  drawings  of,  §  302. 
Postoffice  Department  demand  on  postmasters,  §  296. 
postoffice  records,  copies,  §§  295,  296. 
prima  facie  District  of  Columbia  prohibition  laws,  §  315. 
payment  of  special  tax,  §  316. 

production  of  documents,  etc.,  Eq.  E.  58,  §§  670,  940. 
proof  state  and  foreign  legislative  acts  and  state  court  records  and 

proceedings,  §  274. 
publication  of  Interstate  Commerce  Eeports  and  Decisions  as  evidence, 

§311. 

record  on  appeal — condensing,  Eq.  E.  75,  §  1671. 
record,  statement  in.  Eq.  E.  75,  §  1671. 
records  of  public  offices  not  appertaining  to  a  court  in  states  and  terri- 

tpries,  §  275. 

records,  see  that  heading  and  also  subhei  d  above,  copies, 
rehearing  for  newly  discovered,  §§  1362,  1163. 

reports  of  investigations  of  accidents  from  failure  of  boilers,  not  admis- 
sible in  damage  suits,  §  309. 

relevancy  not  to  be  decided  by  examiner,  Eq.  E.  51,  §  381. 
restoration  of  records,  see  that  heading,  §§  281,  285. 
returns,  copies  of  lost  or  destroyed,  §  2S4. 


INDEX.  1111 

EVIDENCE    (Continued). 

return  «f  a  contract  to  Returns  Office  Department  of  the  Interior,  |  294. 

Revised  Statutes,  authorized  editions,  §§  271,  273. 

Richardson's  Supplement  of  Rerise'd  Statutes,  fi  273. 

seizures,  customs  cases,  burden  of  proof,  §  308. 

solicitor  of  treasury,  copies  of  records,  fi  287. 

state  court  records,  f  274. 

state  laws,  §  274. 

state  records,  copies,  §  275. 

statutes,  see  Federal  Laws,  §5  271,  273. 

stenographer's  appointment,  Eq.  R.  50,  §  1044. 

subpoena  duces  tecum  to  register  of  land  office,  9  298. 

sufficiency  of,  to  convict  under  Alaska  prohibition  laws,  §  814. 

supplement  of  Revised  Statutes,  §  272. 

Supreme  Court  lost  or  destroyed  records,  copies,  §  282. 

taken  before  examiners,  provisions  as  to,  Eq.  R.  51,  §  381. 

taken  before  examiners  to  be  returned  to  the  court,  Eq.  R.  49,  §  380. 

testimony  before  commissioners  court  of  claims,  §  1434. 

testimony  to  be  taken  in  open  court,  Eq.  R.  46,  §§  1040,  1043. 

trademark,  copies  of  patent  office  records,  §  303. 

treasury,  war,  navy,  records  in  suits  against  delinquents,  §  291. 

Treasury  Department  books  and  proceedings  in  embezzlement  suits,  9  29 .'V 

war  records,  copies  in  suits  against  delinquents,  {  291. 

witnesses,  see  that  heading. 

EXAMINATION, 

claimant  on  interrogatories  before  master,  Eq.  R.  65,  5  1063. 

court  of  claims,  §  1434. 
master — adjournment  of,  Eq.  R.  60,  fi  1062. 

EXAMINER, 

attendance  of  witnesses  before,  Eq.  R.  52,  §  390. 

competency  of  questions  before,  not  decided  by  him,  Eq.  R.  51,  {  381. 

contempt,  witness  in,  for  refusing  to  appear  before,  Eq.  R.  52,  |  390. 

cross-examination  of  witness  before,  Eq.  B.  64,  9  372. 

depositions  before,  Eq.  R.  49,  fi  380. 

evidence  taken  before — provisions  as  to,  Eq.  R.  51,  fi  381. 

evidence  taken  before,  to  be  returned  to  court,  Eq.  R.  49,  |  380. 

hearings  public  in  anti-trust  cases,  fi  396. 

notice  of  taking  testimony  before,  etc.,  Eq.  R.  531,  fi  391. 

not  to  decide  on  competency,  materiality,  or  relevancy  of  questions, 

Eq.  R.  51,  5  381. 
witnesses,  attendance  before,  Eq.  R.  52,  fi  390. 

EXCEPTIONAL  MATTERS,  reference  to   master,  illustration,  fi  1064, 


1112  INDEX. 

EXCEPTIONS, 

bill  of,  see  Bill  of  Exceptions,  ch.  23. 

filing   to   master's   report,  §  1071. 

for  insufficiency  of  answer  abolished,  Eq.  E.  33,  ch.  46. 

master  in  chancery's  report,  §§  1070,   1071. 

time  for  taking,  in  law  actions,  §  597. 

to  answer  for  scandal   and  impertinence  shall  not  obtain,  Eq.  E.  21, 

§967. 

to  evidence  offered  and  excluded,  provisions  as  to,  Eq.  E.  46,  §  1043. 
to  master's  report,  Eq.  R.  66,  §  1070. 
to  master's  report,  costs  on,  Eq.  B.  67,  §  1070. 
trial  law  actions,  taking  of,  §  596. 

EXCEPTIONAL  MATTEES,  Deference  to  master,  illustration,  §  1064. 
EXCLUSION  OF  CHINESE,  district  court's  jurisdiction,  §  104. 

EXCLUSIVE  JURISDICTION, 
district  court,  §§  90,  91,  92. 
Supreme  Court,  §  1534. 

EXECUTION,  ch.  27. 

allowance  of  interest  on  judgments,  §  623. 

appraisal,  personal  property,  §  644. 

arrest,  discharge  from,  in  civil  actions,  §  637. 

conformity  to  state  laws,  §  631. 

criminal  cases,  postponed  where  case  carried  to  appellate  court,  §  13S3. 

death  penalty,  §  1403. 

debt,  imprisonment  for,  §  636. 

discharge  from  arrest,  §  637. 

discharge  from,  poor  debtor  in  government  suits,  §§  638,  639. 

fees  of  appraisers,  §  429. 

government  suits,  discharge  of  poor  debtor,  §  638. 

imprisonment  for  debt,  §  639. 

purchase  by  government  on  sale  of  real  estate,  §  643. 
imprisonment  for  debt,  §  636. 

discharge  from,  §  637. 
law  actions,  §  463. 

lien  not  divested  by  change  of  district,  §  628. 
motion  for  new  trial,  §  633. 
new  trial,  §  633. 
officers,  §  632. 

personal  property,  §§  640,  644. 
place,  where  runs  and  executed,  §  635. 
place,  sale  of  real  estate,  §  640. 
publication,  sale  of  real  estate,  §  641. 
revenue  officers,  when  not  against,  §  632. 


INDEX.  1113 

EXECUTION    (Continued). 

runs  and  is  executed  in  any  part  of  state,  9  635. 

•ale  of  personal  property,  place  of,  §  640. 

sale  of  personal  property,  appraisal  of,  §  644. 

Bale  of  real  estate,  place  of,  §  640. 

state  practice,  conformity  to,  §  631. 

stay  of  pending  motion  for  new  trial,  9  633. 

term,  stay  of,  for  one,  §  634. 

writ  of,  provisions  as  to,  Eq.  E.  8,  §§  473,  1112,  1140,  1148. 

EXECUTION  OP  DOCUMENTS, 

admission  of,  of  documents,  Eq.  B.  58,  §§  670,  940. 
demand  to  admit,  §  940. 

EXECUTIVE  DEPARTMENT  RECORDS,  ETC., 
copies  as  evidence,  §  286. 

EXECUTOR  AS  PARTY,  Eq.  B.  37,  (  710. 

EXEMPTIONS, 

jury,  trial  law  actions,  §  584. 

after  one  term's  service  in  a  year,  f  587. 
«        civil  rights  acts,  §  585. 

EXHIBITS, 

bill  of  particulars  does  not  include,  9  923. 
motion  to  dismiss,  considered  on,  §  883. 
of  materials,  Rule  34  C.  C.  A.  Appendix. 

Bule  32  C.  C.  A.  (3d,  7th,  8th,  and  9th  Circuits)  Appendix. 

EX  PARTE, 

cause  to  be  proceeded  with  after  decree  pro  confesso,  Eq.  B.  16,  9  811. 
proceedings  before  master,  Eq.  R.  60,  9  1062. 

EXPERT  EVIDENCE,  interrogatories  not  to  obtain,  9  149. 

EXPERT  WITNESSES,  testimony  of,  in  patent  and  trademark  cases,  Eq.  B. 
48',  99  1041,  1045. 

EXTBADITION, 

agent  to  receive  fugitive  from  foreign  countries,  9  1313. 
arrest  of  fugitive  from  foreign  countries,  9  1300. 
costs  and  fees,  9  417. 
escape,  retaking  person  held.  §  1309. 


1114  INDEX. 

EXTRADITION  (Continued), 
evidence, 

extradition  granted  only  where  probable  cause  exists,  §  1301. 

hearing  upon  the  return,  §  1307. 
foreign  country, 

fugitive  from,  §  1300. 

fugitive  from  place  under  control  of  United  States,  §  1303. 
hearing, 

evidence  on,  §  1307. 

to  be  public,  §  1305. 

hearing  to  be  on  land,  §  1305. 

where  fugitive  from  foreign  country  or  territory  under  control  of  the 

United  States,  §  1304. 
indigent  prisoners,  witnesses  for,  §  1306. 
interstate,  §  1315. 

political  offense,  extradition  not  allowed,  §  1303. 
prisoner  extradited  from  another  state,  §  1316. 
rescue, 

prisoner  extradited  from  foreign  country,  penalty,  f  1314. 
time   for,  §  1310. 

territory,  fugitive  from  foreign,  under  control  of  the  United  States,  5  1303. 
transportation,  extradited  person  to  the  United  States,  §  1312. 
treaty,  extradition  provisions  continuing  during  existence  of,  §  1312. 
trial,  prisoner  to  be  surrendered  only  for  fair,  §  1308. 
warrant,  arrest  of  fugitive  from  foreign  countries,  §  1300. 
witnesses  for  indigent  prisoners,  §  1306. 
witness  fees,  §  417. 

P. 

FACT, 

conclusions  of  master  presumptively  correct,  9  1073. 

reversal,  not  for  error  in,  §  1686. 
Supreme  Court,  issues  of,  in,  §  1534. 
writ  of  error,  none  for  error  in,  §  1686. 

FACTS, 

insufficiency  of,  as  defense,  how  presented,  Eq.  B.  29,  §§  880,  900. 
material,  may  be  alleged  in  supplemental  pleading,  Eq.  B.  34,  eh.  32. 
not  to  be  stated  in  master's  report,  Eq.  B.  61,  §  1070. 
ultimate  statement  of,  upon  which  relief  asked,  to  be  stated  in  bill,  Eq.  B. 
26,  §  696. 

FEDEBAL  BILL  IN  EQUITY,  see  Bill,  ch.  26. 

FEDEBAL   COMPLAINT   AT   LAW,   see   heading   Injtial   Pleading   at   Law, 
ch.  16. 


INDEX.  1115 

FEDERAL-  CONSTITUTION, 
nee  also  Constitution, 
federal  question  arisei  under,  9  124. 

FEDERAL  CORPORATIONS, 

federal    question    involved    when    parties,    except    national   banks    and 

railroads,  §§  122,  123. 
national  banks  as,  do  not  ipso  facto  involve  federal  questions,  9  123. 

FEDERAL  COURTS, 
see  also  Courts. 

actions  in,  see  Law  Actions,  chs.  1,  15. 
appellate  procedure  of,  differences  law  and  equity,  9  8. 
constitutional  powers  of,  §§  1,  2,  3. 
circuit  court  of  appeals,  see  that  heading,  9  4,  ch.  70. 
court  of  claims,  see  that  heading,  9  4,  ch.  68. 
court  of  customs  appeals,  see  that  heading,  9  4,  ch.  69. 
district  courts,  see  that  heading,  9  4,  chs.  2,  3,  6. 
double  system  of  procedure  of,  9  5. 
enumeration  of,  9  4. 

equity  suits,  see  that  heading,  ch.  25. 
functions  of,  9  1. 
generally  as  to,  ch.  1. 

judicial  power  of,  under  the  constitution.  §9  1,  2,  3. 
jurisdiction  in  general,  sec  Jurisdiction,  ch.  1. 
law  actions,  see  that  heading,  ch.  15. 
penal  laws  enforced  in,  9  1202. 
place  of,  in  our  judicial  system,  §§  1,  & 
practice,  see  that  heading, 
procedure,  see  also  that  heading. 

blended,  a  future  possibility,  9  9- 

desirability  of  a  special  study  of,  9  12. 

differences  between  federal  and  state,  996,  10. 

double  system  of,  9  5. 

equity  suits,  rules  governing,  9  8,  ch.  25. 

law  actions,  conformity  to  state  practice,  9  7,  ch.  15. 
Supreme  Court,  see  that  heading,  9  4,  ch.  72. 
writs,  power  to  issue,  9  1100. 

FEDERAL  JURISDICTION, 
see  also  Jurisdiction. 
of  offenses,  9  1205. 

FEDERAL  LAWS, 

appeal  to  Supreme  Court  where  federal  tows  drawn  In  question,  9  1556. 
evidence  of,  §9  271,  273,  278. 


1116  INDEX. 

FEDERAL  LAWS  (Continued). 

federal  questions  arise  under,  §  125. 

pamphlet  copies  of  statutes  and  bound  copies  of  acts  as  evidence,  §  278. 

FEDERAL  OFFICERS, 

see  also  Judicial  Officers. 

aliens,  suits  by,  against  officers,  removal  of,  §  206. 

certiorari  in  removal  of  suits  against  congressional  or  revenue,  §  212. 

congressional,  suits  against  removal  of,  §  209. 

federal  question  involved  in  suits  by  or  against,  §  121. 

habeas  corpus  in  removal  suits,  §§  208,  212. 

parties  to  suit,  raises  federal  question,  §  121. 

removal  of  causes,  aliens  against,  §  206. 

against  congressional  'or  revenue  officers,  §  209. 
revenue  officers,  removal  of  suits  against,  §  209. 

FEDERAL  PROCEDURE,  see  Procedure. 

i 

FEDERAL  QUESTION,   ch.  6. 
allegation  of  in  bill,  §  127. 
amount  in  controversy  required,  §  128. 
arising  under  the  constitution,  §  124. 

federal  laws,  §  125, 

treaties,  §  125. 

banks,  national,  exception  as  to,  involving  federal  question,  §  123. 
bill  in  federal  court  must  show,  §  129. 
bill  in  state  court  must  show,  §  130. 
bond  in  removal  cases,  §  196. 

citizenship,  in  cases  involving  federal  question  as  affecting  venue,  §  127. 
class  one  in  removal  cases,  §  192. 

constitution  of  the  United  States  arising  under,  §  124. 
constitutional  provision  as  to,  §  3. 
corporations  chartered  by  Congress,  §§  122,  123. 
corporations,  federal,  arises  in  suits  involving,  §  122. 

exception  national  banks  and  railroads,  §  123. 
defined,  §  125. 
diverse  citizenship,  in  cases  involving  federal  question,  as  affecting  venue, 

§127. 
federal  constitution,  arising  under,  §  124. 

laws,  arising  under,  §  125. 

treaties  arising  under,  §  125. 
federal  corporations,  arises  in  suits  involving,  §  122. 

exception  national  banks  and  railroads,  §  123. 

federal  incorporation  no  longer  ground  of  jurisdiction,  §§  122,  123. 
federal  officers,  arises  in  suits  involving,  §  121. 


INDEX.  1117 

FEDERAL  QUESTION    (Continued), 
ground  of  jurisdiction,  ch.  6. 
ground  of  original  jurisdiction,  9  125. 
ground  for  removal,  §  125. 
issue,  how  raised,  §  130. 
jurisdiction, 

federal  courts,  §  1. 

ground  of  original,  §  125. 

for  removal,  §  126. 

laws  of  the  United  States  arising  under,  §  125. 
national  banks,  suits  involving  do  not  ipso  facto  raise  federal  question, 

§  123. 

officers,  federal,  arises  in  suits  involving,  §  121. 
original  jurisdiction,  as  a  ground  of,  §  125. 
parties  in  suits  involving,  §  127. 
pleading,  initial,  must  show  in  federal  court,  §  129. 

state  court,  §  130. 
removal,  ground  for,  §  126. 
removal  of  causes,  §5  191,  192. 

bond,  §  196. 

remanding,  §  215. 

treaties  6f  the  United  States,  i§  125,  126. 
venue  as  affected  by  diverse  citizenship,  §  127. 
what  is,  9  120. 
where  must  appear  in  federal  court,  §  129.  -,„  v 

state  court,  §  130. 

FEDERAL  SYSTEM,  double,  legal  and  equitable,  9  5. 

FEDERAL  TREATIES,  see  Treaty. 

FEDERAL  WRIT  OF  HABEAS  CORPUS,  cases  where  it  will  issue,  9  1333. 

FEES, 

see  also  Costs  and  Fees,  ch.  14. 

amount  of,  and  mileage,  witnesses,  §§  348,  349. 

claim  cases  pending  in  Departments,  witnesses,  §  356. 

clerk  circuit  court  of  appeals,  Rule  23  C.  C.  A.  (7th  Circuit)    Appendix. 

departments  claim  cases,  witnesses,  9  356. 

mileage,  witnesses,  §§  ,'i48,  349. 

double,  prohibited,  of  witnesses,  9  350. 
stenographer's,  Eq.  R.  50,  §  1044. 
witnesses,  amount  and  mileage,  §§  348,  349,  350. 

claims  cases  in  departments,  9  353. 

patent  cases,  9  353. 


INDEX. 

FIELD  DEPUTY  MAESHALS,  §  31. 

FILE  number,  each  suit  and  all  papers,  process,  etc.,  to  be  marked  with,  and 
noted  on  equity  docket,  Eq.  B.  3,  Appendix 

FILING, 

amendment  on  substitution  of  parties,  Eq.  E.  45,  §  763. 

decree,  §  1142. 

depositions  in  equity  published  on,  §  392. 

deposition,  publication  of,  Eq.  E.  55,  §  372. 

interrogatories,  Eq.  E.  58,  §§  670,  940. 

pleadings,  Eq.  E.  1,  §  660. 

record,  appeal  in  circuit  courts  of  appeals,  §  1671. 

record  on  error,  §  1670. 

temporary  restraining  order,  §  1106. 

FINAL  DECISIONS,  of  circuit  court  of  appeals,  review  by  certiorari,  §  1677. 

FINAL  DEUBEE, 
see  also  Decree, 
decree  pro  confesso,  when  made,  §  813. 

FINAL  HEAEING, 

points  of  law  may  be  disposed  of  before,  Eq.  E.  29,  §  900. 

FINAL  PBOCESS, 

issue  and  return  of,  Eq.  B.  1,  §  822. 

to  be  served  by  marshal,  deputy,  etc.,  Eq.  B.  15,  §  796. 

FINDINGS,  §  1141. 

FINE, 

collection  of  judgment  for,  §  1384. 
costs  of  prosecution,  §  434. 
mitigation  or  remission,  §  1400. 

or  remission,  exception,  §  1402. 

rules  and  mode  of  providing,  §  1401. 
witnesses,  officers  and  informers  not  disqualified  in  suits  for,  §  334. 

FLOEIDA,  district's,  terms  and  places  of  holding  court,  §  76,  Jud.  Code,  Ap- 
pendix. 

FOLIO,  defined,  §§  428,  558. 

FOOD  PEODUCTS  AND  FUEL,  condemnation  under  act,  §  1725. 
district  courts  jurisdiction,  §  1725. 
hoarding  of,  prosecutions  for,  §  1725. 
libel  for  condemnation,  procedure,  §  1725. 


INDEX.  Illfj 

FORECLOSURE  of  mortgages,  etc.,  decree  for  balance  due,  Eq.  B.  10,  9  1140. 
FOREIGN  CITIZENS,  see  Alien*. 

FOREIGN  CONSULS, 
see  also  Consuls, 
jurisdiction  over  disputes  »f  seamen,  §|  108,  109,  110. 

FOREIGN  COUNTRY, 

deposition  on  letters  rogatory,  §  393. 

depositions  to  be  used  in,  §  394. 

extradition  from,  §  1300. 

extradition  of  fugitive  from  place  under  control  of  United  States,  |  1303. 

FOREIGN  LAWS,  evidence  of,  §  274. 

FOREIGN  LETTERS  PATENT,  copies  as  evidence,  §  SOL 

FOREIGN  LETTERS  ROGATOY,  witness  fees,  §  421. 

FOREIGN  RECORDS,  filed  in  Department  Offices  relating  to  Land  Titles  in 
United  States,  copies  as  evidence,  i  276. 

FORFEITURE  OF  ESTATES,  none  in  criminal  cases,  S  1*04, 

FORFEITURES, 

copyright  laws,  limitations,  §  241. 

damage  suits  for  false  claims  against  United  States,  limitations,  §  242. 

statutes  of  limitation,  §§  238,  239. 

venue,  SI  76,  79. 

witnesses,  officers  and  informers  not  disqualified  in  suits  for,  9  334. 

FORMA  PAUPERIS*  proceeding  in,  on  appeal,  9  1668. 
see  also  Indigent  Parties. 

FORMER  DEPOSITIONS,  etc.,  may  be  used  before  master,  Eq.  B.  64,  9  1063. 

FORMS, 

account  before  master,  Eq.  R.  63,  §§  1063,  1065. 
affidavit  of, 

prejudice,  for  removal,  form  18,  9  200. 

return  of  subpoena  for  defendant  in  equity,  9  798. 
allowance  of  appeal,  §  1658. 

alternative — prayer   for  specific  relief  may  be  in,  Eq.  R.  25,  9  698. 
amount  in  controversy, 

issue  as  to,  allegation,  9  181. 


1120  INDEX* 

FORMS    (Continued). 

amount  in  controversy  (continued). 

good  faith,  issue  as  to,  allegation,  §  181. 
answer, 

equity,  rule  as  to,  §  965. 

law,  conforms  to  state  law,  §§  540,  543. 
appeal, 

allowance  of,  §  1658. 

assignment  of  errors,  §  1661. 

bond  on,  {  1664. 

bond  circuit  court  of  appeals,  8th  Circuit,  Addenda  "Rule  45  C.  C.  A. 
Appendix. 

briefs,   circuit  court  of  appeals,   Rule   21   C.   C.  A.    (6th   Circuit) 
Appendix. 

citation  on,  §  1664. 

motion  to  dismiss,  §  1688. 

notice  of  motion  to  dismiss,  §  1688. 

petition  for,  §  1658. 
appearance  bond  on  writ  of  error  in  criminal  cases,  Addenda  to  Rule  37 

C.  C.  A.  (5th  Circuit)    Appendix, 
assignment  of  errors,  §§  1661,  1662. 
assignor's  residence  and  citizenship,  allegation  of,  §  97. 

citizenship  of  parties,  §  694. 
bill  of  review,  §  1182. 
bond, 

appeal,  §  1664. 

appearance  on  writ  of  error  in  criminal  cases.  Addenda  to  Rule  37 
C.  C.  A.  (5th  Circuit)    Appendix. 

circuit    court    of    appeals,    8th    circuit    Addenda   Rule    45    C.    C.    A. 
Appendix. 

removal,  for,  form  12,  §  196. 

notice  of  bond,  form  13,  i  198. 
briefs, 

circuit  court  of  appeals,  Rule  21  C.  C.  A.  (6th  Circuit)  Appendix, 
certificate, 

clerk's,  with  record  on  removal,  §  198. 

officers  to  deposition  de  bene  esse,  §  379. 

questions  by  circuit  judges  to  Supreme  Court,  §  1678. 
eertiorari, 

diminution  of  record,  §  1689. 

order   for,    in   suit   against   revenue   officers   for   removal   from    state 
courts,  form  21,  §  212. 

petition  and  order  for  writ  of,  §  1677. 

same  in  action  against  revenue  officers  for  removal  from   state 
court,  form  20,  f  210. 


INDEX.  1121 

FORMS    (Continued). 

oertiorari   (continued). 

removal  on  ground  of  prejudice  or  local  influence,  form  19,  §  200. 

revenue  officers,  removal  of  suits  against,  form  22,  §1214. 

writ  of,  under  §  39  Judicial  Code  in  removal  of  cases,  form  23,  §  214. 
circuit  court  of  appeals,  see  Appeal  herein  above. 

bond  8th  circuit,  Addenda  Rule  45  C.  C.  A.  Appendix. 

briefs,  Rule  21  C.  C.  A.  (6th  Circuit)  Appendix. 

certificate  of  questions  to  Supreme  Court,  §  1678. 
citation  on  appeal,  §  1663. 

8th  circuit  Addenda  Rule  46  C.  C.  A.  Appendix 
citizenship, 

answer  setting  up  lack  of  diversity  of,  §  159. 

assignor  of  plaintiff,  allegation  of,  §  97. 

bill  in  equity,  parties  to,  §  694. 

corporations,  allegations  of,  §§  144,  694. 

motion  to  dismiss  for  lack  of  diversity  of,  §  159. 
clerk's  certificate  with  record  on  removal,  §  198. 
complaint  at  law,  §  474. 

conforms  to  state  law,  §  451. 

corporations,  citizenship  and  residence  of,  allegations  of,  §§  144,  694. 
counterclaim  in  equity,  rule  as  to,  §  980. 
criminal  cases, 

appearance  bond  on  writ  of  error  to  circuit  court  of  appeals.  Addenda 
to  Rule  37  C.  C.  A.  (5th  Circuit)  Appendix. 

indictments, 

defects  in  form  may  b«  disregarded  when  immaterial,  5  1244. 
nary  court-martial,  law  as  to  indictment,  §  1242. 
perjury,  law  aa  to  indictment,  §  1240. 
subornation  of  perjury,   law  as  to  indictment,  5  1241 
decree,  equity  suits,  rules  as  to,  5  1140. 
decree,  injunction,  §  1122. 
decree  on  motion  to  dismiss,  §  891. 

defensive  pleading  at  law  conforms  to  state  law.  §§  540.  543. 
deposition, 

certificate  of  officer  to  deposition  de  bcne  use,  §  379. 

de  bene  esse  deposition,  §  379. 

equity  rule  as  to,  5  380. 

notice  of  taking,  |  377. 
diminution  of  record,  certiorari,  §  1689. 
diverse  citizenship,  see  "citizenship"  abore. 

answer  setting  up  lack  of,  §  159. 

motion  to  dismiss  for  lack  of,  §  159. 

equity, 

answer,  rules  »s  to,  I  965. 

••••MI— n 


1 1  22  INDEX. 

FORMS    (Continued), 
equity    (continued). 

bill, 

citizenship  and  residence  of  parties,  allegation,  §  694. 
corporation's   citizenship  and  residence,   allegation,  §§  144,   694. 

decree,  rules  as  to,  §  1140. 

deposition,  §§  379,  380. 

process,  §  793. 

returns  of,  rule  and  form,  §§  798,  799. 

subpoena  for  defendant,  §  793. 
errors,  assignment  of   (see  also  Appeal  above  and  Writ  of  Error  below) 

§§  1661,  1662. 

federal  question,  allegation  raising  issue  of,  §  130. 
general  verdict  conforms  to  state  law,  §  611. 

good  faith  of  amount  in  controversy,  allegation  raising  issue,  §  181. 
Hawaii,  writ  of  error  to  Supreme  Court  of,  §  1680. 
indictment, 

defect  in  form  disregarded  when  immaterial,  §  1244. 

navy  courtmartial,  law  as  to,  §  1242. 

perjury,  law  as  to,  §  1240. 

subornation  of  perjury,  law  as  to,  §  1241. 
initial  pleading, 

equity,  see  Bill  in  Equity,  above,  §  694. 

law,  see  Complaint  at  Law,  above,  §§451,  474. 
injunction  order  and  decree,  §  1122. 
interlocutory  injunction,  §  1122. 
interrogatories,  Abjections  to,  §  952. 
issue, 

amount   in   controversy,   allegations,  §  181. 

diverse  citizenship,  answer  and  motion  to  dismiss  raising,  §  159. 

federal  question,  allegation  raising,  §  132i 

good  faith  of  amount  in  controversy,  allegation,  §  181. 
law  action, 

complaint,  §§  451,  474. 

defensive  pleading  conforms  to  state  law,  §§  540,  543. 

process  conforms  to  state  practice  except  signatures,  seal  and  teste, 

§§  453,  520,  522. 

local  influence,  petition  for  removal  on  ground  of,  form  17,  §  200. 
mandate  to  district  court,  §  1690. 
master,  accounts  before,  rules  as  to,  §  1065. 
master's  order  on  accounting,  §  1062. 
motion  to  dismiss,  §  891. 

appeal,  §  1688. 

notice  of,  §  1688. 

diverse  citizenship,  lack  of,  §  159. 

venue  improperly  laid,  §  86. 


INDEX.  1123 

FORMS   (Continued). 

motion  to  remand  to  state  court,  form  24,  §  215. 

motion  to  strike   out,  5  1002. 

navy  court-martial  indictments,   law  as   to,  5  1242. 

notice, 

appeal,  motion  to  dismiss,  §  1688. 
deposition,  taking  of,  §  377. 
removal,  form  16,  §  198. 

of  petition  and  bond,  form  13,  9  198. 
objections  to  interrogatories,  §  952. 
order  for,  9  198. 

allowance  of  appeal,  §  1658. 
allowance  of  writ  of  error  to  state  court,  §  1609. 
order  of  master,  an  accounting,  §  1062. 
remanding,  form  25,  §  215. 
removal,  form  14,  §  198. 
supersedeas  on  appeal,,  §  1666. 
writ  of  certiorari,  §  1677. 
writ  of  error  to  state  court,  §  1809. 
perjury,  indictment  for,  law  as  to,  §  1240. 
perpetual  injunction,  $  1122. 
petition, 

appeal,  §  1658. 
certiorari, 

diminution  of  record,  §  1689. 
for  writ  of,  §  1677. 

notice  of  petition  and  bonds,  form  13,  §  198. 
removal, 

certiorari,  for,  against  revenue  officers,  form  20,  §  210. 

citizen  against  alien,  form  8,  9  195. 

federal  question,  on  ground  of,  forms  1,  3,  4,  9  195. 

local  influence,  on  ground  of,  form  17,  §  200. 

nonresident  plaintiff  against  nonresident  defendant,  form  5,  9  195. 

notice  of  petition,  form  13,  9  198. 

prejudice,  on  ground  of,  form  17,  9  200. 

resident  plaintiff  against  alien  defendant,  form  9,  9  195. 

resident  plaintiff  against  defendant  and  a  resident  defendant  who 

has  disclaimed,  form  7,  9  195. 

resident  plaintiff  against  nonresident  defendant,  form  6,  9  195. 
separable  controversy,  form  10,  9  195. 

after  dismissal  of  suits  against  other  defendants,  form  11, 

9195. 

writ  of  error  to  state  court,  9  1609. 
writ,  order  allowing  writ.  5  1609. 
pleadings  circuit  court  of  appeals,  Rule  21  0.  C.  A.  (fith  Circuit)  Appendix. 


1124  INDEX. 

FORMS    (Continued). 

preeipe  for  subpoena,  §  79"2. 

prejudice,  petition  for  removal  on  ground  of,  form  17.  §  200. 
printed  records,  circuit  court  of  appeals,  Rule  26  C.  C.  A.  Appendix, 
process  in  equity,  §§  793,  799. 

rule  as  to,  §  911. 
return  of, §  798. 

rule  as  to,  §  791. 
process  at  law  conforms  to  state  practice  except  signatures,  seal  and  teste, 

§§  453,  520,  522. 

question,  federal,  issue  as  to,  allegations  of,  §  132. 
record, 

circuit  court  of  appeals,  Eule  21  C.  C.  A.  (6th  Circuit)   Appendix. 

printed,  Rule  26  C.  C.  A.  Appendix. 

clerk's  certificate  with  record  on.  removal,  form  15,  §  198. 
remanding  to  state  court, 

motion  and  order  for,  §  215. 
removal, 

affidavit  of  prejudice,  form  18,  §  200. 

bond  on,  form  12,  §  196. 

certiorari,  petition   for,  in  action  against  revenue  officers,   form   20, 

§305. 

citizen  against  alien,  petition,  form  8,  §  195. 
clerk's  certificate  with  record,  form  15,  §  198. 
federal  questions,  petitions  on  ground  of,  forms  1,  3,  4,  §  290. 
motion  to  remand  on  ground  of  no  jurisdiction  under,  §  37,  Judicial 

Code,  form  24,  §  215. 
removal,  notice  of,  form  16,  §  198. 

petition  and  bond  for,  form  13,  §  293. 
order  for,  form  14,  §  293. 

remanding,  form    25,  §  310. 
petitions, 

certiorari  in  actions  against  revenue  officers,  form  20,  §  305. 

citizens  against  alien,  form  8,  §  195. 

federal  question,  on  ground  of,  forms  1,  3,  4,  §  195. 

local  influence,  on  ground  of,  form  17,  §  295. 

nonresident  plaintiff  against  nonresident  defendant,  form  5,  §  195. 

notice  of  petition  and  bonds,  form  13,  §  198. 

.prejudice,  on  ground  of,  form  17,  §  295. 

resident  plaintiff  against  alien  defendant,  form  9.  §  195. 

resident  plaintiff  against  defendant  and  resident  defendant  who 

has  disclaimed,  form  7,  §  195. 

resident  plaintiff  against  nonresident  defendant,  form  6,  §  195. 
separable  controversy,  form  10,  §  195. 

after  dismissal   of  suit  against   other  defendants,   form    11, 
§195. 


INDEX.  1125 

FORMS    (Continued), 
removal    (continued), 

petitions   (continued), 

verification  of  petition  by  attorney,  form  2,  §  195. 
writ  of  certiorari  for  removal  in  action  against  revenue  officers, 
form  21,  §  212. 
order  for,  form  22,  §  214. 
petition  for,  form  20,  §  210. 
writ  of  error  to  state  court,  §  339. 

writ  of  certiorari  for  removal  on  ground  of  prejudice  or  local  in- 
fluence,  form    19,  §  200. 

writ  of  certiorari,  under  §  39,  Judicial  Code,  form  23,  9  214, 
writ  of  error  to  state  court,  §  339. 

order  allowing  writ,  §  339. 
residence, 

assignor  of  plaintiff,  allegation  of,  §  97. 
corporations,  allegations  of,  §  144. 
parties  to  bill  in  equity,  allegations  of,  §  694. 
return  of  subpoena  for  defendant  in  equity,  §  798. 

rules  as  to,  9  799. 

return  of  writ  of  error,  8th  circuit,  Addenda  to  Rule  45  C.  C.  A.  Appendix, 
separable  controversy. 

petition  for  removal  of,  form  10,  9  195. 

petition  for  removal  of,  after  dismissal  of  suits  against  other  defend- 
ants, form  11,  9  195. 
•etoff  in  equity,  rule  as  to,  9  980. 

subornation  of  perjury,  indictment  for,  law  as  to,  9  1241. 
subpoena  for  defendant  in  equity,  9  793. 
precipe  for,  §  792. 
return  of,  9  798. 

supersedeas  order  on  appeal,  9  1866. 

technical,  of  pleadings  abrogated,  Bq.  R.  18,  9§  690,  960,  965. 
venue, 

answer,  allegations  in,  as  to  improper,  9  89. 
corporation's,  allegations  of,  9  86. 
motion  to  dismiss  for  improper,  9  86. 
writ  of  certiorari, 

diminution  of  record,  9  1689. 
petition  and  order  for,  9  1677. 
removal  of  causes, 

local  influence  or  prejudice,  form  19,  9  200. 
revenue  officers,  suits  against, 
petition   for,  form  20.  §  210. 
order  for,  form  21.  §  214. 
writ  of,  form  22.  5  214. 
under  9  39,  Judicial  Code,  form  23.  §  214. 


1126  INDEX. 

FORMS    (Continued), 
writ  of  error, 

clerk's  certificate  to  transcript,  §  1670. 

circuit   court    of  appeals,    8th    circuit,    Addenda   Rule   45    C.    C.    A. 

Appendix, 
criminal  cases,  appearance  bond  on  error  to  circuit  court  of  appeals, 

Addenda  to  Rule  37  C.  C.  A.  (5th  Circuit)    Appendix. 
Hawaii,  to  supreme  court  of,  §  1680. 

return  of,  8th  circuit,  Addenda  to  Rule  45  C.  C.  A.  Appendix, 
state  court  to, 

order  allowing  writ,  §  1609. 
petition  for  writ,  §  1609. 
writ,  §  1609. 
writ  of  mandate  to  district  court  on  reversal,  §  1690. 

FORTIFICATIONS, 

condemnation  of  land   for,  §  1727. 
renue  of  prosecutions  for  injury  to,  §  83. 

FRAUD, 

how  alleged  in  bill,  §  696. 

removal  of  causes,  ground  for  remanding  or  dismissal,  §  215. 

FUEL.     See  Food  Products  and  Fuel,  §  1725. 

& 

GARNISHES, 

see  also  Garnishment, 
issue  by,  §  508. 
judgment  against,  §  500. 

GARNISHMENT, 

see  also  Attachment. 

effect  of,  §  505. 

general  statement,  §  504. 

government  suits  against  corporations,  §  510. 

same,  issue  tendered  when  garniahee  denies,  §  511. 

same,  garnishee  in  contempt  on  failing  to  appear,  §  512, 
issue  by  garnishee,  §  508. 
judgment  against  garnishee,  §  509. 
law  actions,  §  452,  ch.  17. 
notice  of,  §  506. 
persons  subject  to,  §  507. 
postal  suits  against  delinquents,  §  501. 
property  subject  to,  §  507. 
state  laws,  adoption,  §  480. 


INDEX.  1127 

GENERAL  APPRAISERS,  BOARD  OP,  |  1451. 
GENERAL  DENIAL,  answer  to  avoid,  Eq.  R.  30,  5  964. 

GENUINENESS,  demand  to  admit,  §  940. 

of  documents,  admission  of,  etc.,  Eq.  R.  58,  5§  670,  940. 

GEORGIA  DISTRICTS,   terms,   and   places  holding  court,   {77,   Jud.   Code, 
Appendix. 

GOOD  FAITH,  of  amount  in  controversy,  an  issue,  5  181. 

GOVERNMENT, 

see  also  United  States, 
credits  in,  §  1709. 

postal  suits,  S  1710. 

execution,  imprisonment  for  debt,  §§  638.  639. 
execution  purchase  by  government  on  sale  of  real  estate,  J  643. 
interest  in  postal  suits,  §  1711. 

paramount  title  does  not  affect  possessory  action  mining  titles,  §  310. 
suits  against  corporations — garnishment,  §§  510,  512. 

GRAND  JUROR,  fees  of,  55  425,  426, 

GRAND  JURY,  eh.  60. 
discharge  of,  5  1223. 
foreman  of,  §  1222. 

indictment  to  be  by  at  least  twelve  jurors,  i  1224. 
number  of,  i  1221. 
when  summoned,  §  1220. 

GROUNDS, 

depositions,  equity,  §  374. 
jurisdiction,  see  Grounds  of  Jurisdiction, 
removal  of  causes,  ch.  9,  $  190. 
see  that  heading. 

GROUNDS  OP  JURISDICTION, 

bill  in  equity,  allegations  of,  $  695. 
complaint  at  law,  allegations  of,  5  471. 
diverse  citizenship,  ch.  7. 
federal  question  is,  ch.  6,  §  125. 

GUARDIAN,  as  party,  Eq.  R.  37,  $  710. 
GUARDIANS,  §  151. 


1128  INDEX. 

/ 

H. 

HABEAS  CORPUS,  ch.  64. 

allowance  of  writ,  §  1335.  / 

amendment  of  return,  §  1340. 

application,  how  made,  §  1334. 

Civil  Eight  Cases,  removal,  §  208. 

congressional  officers,  removal  of  suits  against,  §  214L 

counter  allegation  on  return,  §  1340. 

constitutional  provision,  §  1330. 

courts  authorized  to  issue,  §  1331. 

Custody  of  prisoners,  circuit  court  of  appeals, 

Rule  33  C.  C.  A.  Appendix. 

Bule  31  C.  C.  A.  (3d  and  7th  Circuits)  Appendix. 

Rule  32  C.  C.  A.  (6th  Circuit)  Appendix, 
direction  of  writ,  §  1335. 
disposition  of  party,  §  1341. 
federal  cases  where  it  will  issue,  §  1333. 
hearing,  day  for,  §  1339. 

summary,  §  1341. 
issuance  of  writs,  §  1335. 
judges,  power  to  grant  writs,  §  1332, 
jurisdiction  to  grant,  §§  1331,  1333. 
law  of  nations,  involved,  §  1342. 
notice  when  law  of  nations  involved,  §  1349. 
person,  producing  of,  §  1338. 
removal  of  causes,  §§  208,  212. 
revenue  officers,  removal  of  suits  against,  f  218. 
return, 

amendment,  §  1340. 

denial  of,  §  1340. 

form  of,  §  1337. 

time  of,  §  1336. 
summary  hearing,  §  1341. 
time,  return  of  writ,  §  1330. 
writ, 

form  of  return,  §  1337. 

return  of,  §§  1336,  1340. 

time  of  return  of,  §  1336. 

BARBOR  IMPROVEMENTS,  condemnation  of  land  for,  §  1728. 

f  I  ARBORS,  jurisdiction  of  district  court  to  remove  obstructions,  §  102. 

HAWAII, 

appeal  and  error  to  supreme  court,  §  1561. 

appellate  procedure,  supreme  court  of,  to  United   States  Supreme  Court, 
S 1680.       • 


INDEX.  1129 

HEARING, 

answer  as  a  plea,  §  901. 
anti-trust  cases  before  master,  public,  §  398. 
bill    and    answer,  §  969. 

calendar,  ch.  49.     See  Calendar,  Rule  22  C.  C.  A.  (6th  Circuit)    Appendix, 
causes,  notice  of  interlocutory  orders  for,  Eq.  R.  6,  §  822. 
circuit  court  of  appeals,  Rule  42  C.  C.  A.  (8th  Circuit)  Appendix, 
criminal  cases,  monthly  adjournments  to  expedite,  §  51. 
defenses  before  trial,  Eq.  R,  29,  §  900. 
extradition,  evidence  on,  §  1307. 

extradition  of  fugitive  from  foreign  country  or  territory  under  control  of 
the  United  States,  §§  1304,  1305. 

public,  §  1305. 

on  land,  §  1305. 

final,  points  of  law  may  be  disposed  of  before,  Eq.  B.  29,  {  900. 
habeas  corpus,  day  for,  §  1339. 

summary,  5  1341. 
master,  reference  to,  §  1062. 
motion  days  to  be  established,  §  821. 
motion  to  dismiss,  Eq.  R.  29,  §§  880,  900. 

to  strike  defense,  §  673. 

on  exceptions  to  report  of  master,  Eq.  R.  66,  §  1070. 
on  merits,  making  and  directing  interlocutory  motions,  orders,  rules,  etc., 

preparatory  to,  Eq.  R.  1,  \  822. 
plea  in  answer,  §  901. 
reference  to  master  in  chancery,  §  1062. 

temporary  restraining  orders,  precedence  of,  Eq.  R.  73,  f  1104. 
trial  calendar  equity,  |  676. 

HEIR,  as  party  to  suits  to  execute  trusts  of  will,  Eq.  R.  41,  \  722. 
HOARDING,  food  products  and  fuel,  §  1725. 

HOLIDAYS,  computation  of  time,  Eq.  R.  80,  Appendix, 
legal,  clerk's  office  not  open,  Eq.  R.  2,  Appendix. 

I. 

EDAHO,  districts,  terms  and  places  of  holding  court,  |  78,  Jud.  Code,  Appendix. 

ILLINOIS,    districts,   term*   and   places   of  holding   court,    S  79,   Jud.   Code 
Appendix. 

IMMIGRATION  LAWS, 
jurisdiction  under,  §  96. 
venue  of  prosecutions,  9  86. 


1130  INDEX. 

IMMUNITY, 

anti-trust  laws,  witnesses,  §  335. 

commerce  laws,  witnesses,  J  335. 

Congress  witnesses  testifying  before,  §  337. 

criminal  cases,  witnesses,  §§  335,  336. 

judicial  proceedings,  witnesses  in,  §  297. 

removal  by  writ  of  error  to  state  court  of  decision  against,  §  1607. 

witnesses,  commerce  and  anti-trust  laws,  §  335. 

witnesses,  criminal  cases,  §§  335,  336. 

witnesses,  testimony  given  before  Congress,  I  337. 

IMPAIRING  OBLIGATION  OF  CONTRACT,  federal  question,  §  124. 
IMPANELING  JURY,  law  actions,  §  589. 

IMPERTINENCE,  exceptions  to  answer,  for,  shall  not  obtain,  Eq.  R.  21. 
§930. 

IMPERTINENT  MATTER, 

answer  in  equity,  motion  to  strike  from,  §  9(57. 
equity  suits,  removal  of,  §  930. 
illustration  of,  i  931. 
motion  to  strike,  i  930. 

IMPRISONMENT, 

see  also  Confinement. 

offenders  against  United  States,  §  1260. 

IMPRISONMENT  FOR  DEBT, 

execution,  state  laws  adopted,  |  63ft. 
suit  by  government,  f  §  638,  639. 

INCOME  TAX  LAW, 

compulsory  attendance  of  witnesses,  9  358. 
jurisdiction  district  court,  i  113. 

INCOMPETENT, 

costs,  court  deals  with,  Eq.  R.  51,  §  381. 

costs  on  taking  deposition,  Eq.  R.  51,  ||  381,  382. 

see  Competence,  Immunity. 

INDEBTEDNESS   DUE    GOVERNMENT,   settlement   of   court   of   claims, 
S  1432. 

INDEPENDENT  SUIT  IN  EQUITY,  answer  in  equity,  counterclaim,  §  982. 


JNDEi.  H31 

INDEX,  judgments  law  action,  |  626. 

INDIANA,  districts,  terms  and  places  of  holding  court,  9  80,  Jnd.   Code, 
Appendix. 

INDIAN  AFFAIRS,  copies  of  the  commissioner's  records  as  evidence,  §  299. 
INDIAN  RESERVATION,  crimes  on,  in  South  Dakota,  §  106. 

INDIANS, 

diverse  citizenship,  not  citizens,  |  153. 
patents,  statute  of  limitations,  8  247. 

INDIAN  TREATIES,  claims  under,  court  of  claims,  no  jurisdiction,  9  1432. 

INDICES,  of  equity  docket,  order  book,  and  equity  journal,  clerk  to  keep, 
Eq.  R.  3,  Appendix. 

INDICTMENT,  ch.  61. 

capital   crimes,   accused   entitled  to   counsel   and    to   compel   witnesses, 

S  1716. 

consolidation  of  charges,  §  1243. 
defect  of  form,  S  1244. 

demurrer,  judgment  respondeat  ouster,  §   1245. 
grand  jury  by,  §  1224. 
navy   court-martial,  §  1242. 
perjury,  9  1240. 
subornation  of  perjury,  |  1241. 

INDIGENT,  convicts,  discharge  of,  when  imprisoned  for  fines,  §  1385. 
prisoners,  extradition,  witness  for,  J  1306. 

INDIGENT  DEFENDANT,  witnesses,  subpoena  for,  on  behalf  of,  §§  345,  405. 

INDIGENT  PARTIES, 
costs  and  fees,  §  404. 
process,  suits  in  forma  pantperis,  9  528. 
witness  fees  of  indigent  defendant  in  criminal  cases,  9  405. 

INFANTS, 

guardians  ad   Mem   for,  9  151. 

nominal  parties  in  suits  not  against.  Eq.  R.  40,  9  721. 

nothing  to  be  taken  against  as  confessed,  Eq.  R.  30,  9  984. 

INFORMERS,  witnesses,  not  disqualified  as  in  suits  for  fines,  penalties,  or 
forfeitures,  9  334. 


1132  INDEX. 

INFRINGEMENT  OF  COPYRIGHTS,  statutes  of  limitations,  §  251, 

INFRINGEMENT  OF  PATENT, 
costs  of  suit,  §  438. 
interrogatories  may  test,  §  950. 
statutes  of  limitations,  §  250. 
trading  with  the  enemy  act,  suits  under,  §  1723. 
venue,  §  71. 

INFRINGEMENT  SUITS,  trial  of,  §  1046. 

INITIAL  PLEADING, 

see  also  Bill  in  Equity,  ch.  26. 

at  law,  §  451,  ch.  1&. 

complaint,  form  of,  §  474. 

differences  federal  and  state,  §  470. 

effect  of  beginning  as  suit  in  equity,  §  478. 

joinder  legal  and  equitable  causes,  §  473. 

jurisdictional  grounds,  §  471. 

INJUNCTIONS,  ch.  54. 

affidavit  on  application  for  preliminary,  Eq.  E.  73,  §  1103. 

Alaska  prohibition  laws,  §  1121. 

amount  in  suing  out,  §  174. 

appeal  from  order  granting  or  denying  injunction  against  enforcement 
of  state  law,  §  1111. 

appeal  pending,  Eq.  R.  74,  §§  1107,  1667. 

appeals  from  district  court  to  circuit  court  of  appeals,  §  1502, 

appeals  from  final  decree,  Eq.  R.  74,  §§  1107,  16&7. 

bill  to  be  verified,  Eq.  R.  73,  §  1103. 

bond  suspending  on  appeal,  Eq.  R.  74,  §§  1107,  1667. 

bond,  temporary  restraining  order,  §  1102. 

Comptroller  of  Currency,  venue,  §  73. 

contempt,  court's  power  to  punish  for,  §  1116. 

damage  to  be  shown  on  application  for  preliminary  injunction,  Eq.  K. 
73,  §  1103. 

decree,  form  of,  §  1122. 

dissolution  temporary  restraining  order,  §  1105. 

dissolution  order  on  distress  warrant  against  officer  for  failure  to  ac- 
count for  public  moneys,  §  1120. 

distress  warrant  against  officer  for  failure  to  account  for  public  moneys, 
§§  1119,  1120. 

District  of  Columbia  prohibition  laws,  §  1121. 

enforcement  of,  §  1112. 

filing  temporary  restraining  order,  §  1106. 


INDEX.  1133 

INJUNCTIONS   (Continued). 

for  specific  performance  provision  as  to,  Eq.  B.  8,  89  473,  1112,   1140, 

1143. 

forms  of  interlocutory  and  perpetual,  {1122. 
interlocutory  injunctions  do  not  issue  against  national  banks  in  state 

courts,  §  1117. 

interlocutory,   form  of,  §  1122. 
Interstate  Commerce  Commission,  venue,  §  82. 
judge,  power  to  issue,  §  1101. 
liquor  nuisance,  to  abate,  §  1121. 
modification  temporary  order,  5  1105. 
national  banks, 

no  interlocutory  injunction  against  bank  in  state"  courts,  §  1117. 

receivership,  enjoinable,  §  1116. 
ne  exeat,  §  1113. 

notice  of  injunction  against  enforcement  state  laws,  §  1110. 
notice  temporary  restraining  order,  §  1103. 
notice  required  for  preliminary,  Eq.  E.  73,  §§  822,  1103. 
order  for  preliminary  injunction,  see  Restraining  Order, 
pending  appeal,  §  1667. 
perpetual,  form  of,  §1122. 

preliminary,  and  temporary  restraining  orders,  Eq.  B.  73,  §  1103. 
preliminary  injunctions,  §§  1102,  1117. 
procedure, 

order  granted  without  notice,  §  1104. 

order  on  distress  warrant  against  officer  for  failure  to  account  for 

public  money,  §§  1119,  1120. 
prohibition  laws  restraining  violation  of,  9  1121. 
receivership  of  national  banks,  against,  §  1116. 
tcvre  facias,  §  1114. 
state  court,  staying  proceedings  of,  §1108. 

interlocutory   injunction  not  to   issue  in,  against  national  banks, 

§1117. 
state    laws,    hearing    application    for   injunction    against    enforcement, 

§1110. 

state  laws,  against  enforcement  of,  §  1109. 

tax,  Injunction  does  not  issue  against  assessment  or  collection,  §  1118. 
temporary  restraining  order, 

bond,  §  1102. 

dissolution,  §  1105. 

filing,  §  1106. 

national  bank,  none  in  state  court,  §1117. 

notice,  §  1103. 
yenue,   Interstate   Commerce    Commission,  §  82. 


1134 

INJUNCTIONS   (Continued), 
writ  ne  exeat,  §  1113. 
writ  soirc  facias,  §  1114. 

INSPECTION  and  production  of  documents,  etc.,  Eq.  E.  58,  51  670,  940. 
bill  of  particulars  not  a  substitute  for,  §  923. 

INSTRUCTIONS,  trial,  law  actions,  §  599. 

INSTRUCTIONS  AS  TO  APPLICATIONS  FOR  WRITS  OF  CERTIORARI, 
by  clerk  of  Supreme  Court  immediately  preceding  Supreme  Court  rules 
in  our  Appendix,  p,  813. 

INSUFFICIENCY, 

answer,  how  tested,  Eq.  R.  33,  eh.  46,  §  968. 

Bill,  motion  to  dismiss,  Eq.  R.  29,  §§  880,  900. 

of  fact,  defense  of,  how  presented,  Eq.  R.  29,  §§  880,  900. 

INSURANCE, 

•  .    1 

bureau  of  war  risk,  see  Bureau  of  War  Risk  Insurance,  §  1724. 
Bureau  of  War  Risk,  compelling  attendance  of  witnesses,  §  361. 

INSURRECTION,  seizure  for,  renue,  §  79. 
INSURRECTIONARY,  property  condemnation  of,  renue,  §  78. 

INTEREST, 

allowance  on  judgments,  §  623. 

circuit  court  of  appeals,  Rule  26,  C.  C.  A.  (6th  Circuit)  Appendix. 

Rule  28  C.  C.  A.  (3d,  4th,  7th  Circuits)  Appendix. 

Rule  30  C.  C.  A.  (1st  and  3d  Circuits)  Appendix, 
court  of  claims,  §  1437. 
district  judge,  outside  judge  to  serve,  §  25. 
duties,  in  suits  for,  §  624. 
judgments,  law  actions,  §§  623,  624. 
levy  for,  §  623. 
money,  kind  payable  in  suits  for  duties,  §  624. 

rate  on  judgments,  §  623. 

1  ' 

INTERLOCUTORY   INJUNCTION, 
form  of,  §  1122. 
national  banks,  none  against,  in  state  courts,  §  1117. 

INTERLOCUTORY    MOTIONS,    orders,    rules,    etc.,    making    and1    directing, 
Eq.  R.  1,  §  822. 


INDEX.  1135 

INTERLOCUTORY  ORDERS, 
notice  of,  Eq.  R.  6,  §  822. 
time  for  appeal  from,  9  1654. 

INTERNAL  REVENUE, 

statute  of  limitations,  §§  234,  235. 
taxes,  venue,  §  76. 

INTERPLEADER, 

insurance  companies,  §  96. 

INTERPRETATION,  see  Construction. 

INTERROGATORIES,  see  also  Discovery,  §  945. 
answer  by  plaintiff,  motion  to  dismiss,  §  890. 
answer  of  defendant,  as  to  matters  in,  §  945. 

answer  may  be  stricken  out  for  failure  to  answer.  Eq.  R.  58,  9  940. 
attachment  for  failure  to  answer,  Eq.  R.  58,  §§  670,  940. 
best  evidence,  rule  applicable,  §  947. 
bill  of  particulars  not  obtainable  by,  §  944. 

bill  may  be  dismissed  for  failure  to  answer,  Eq.  R.  58,  §§  670,  940. 
bill,   separate   from,  §  943. 

claimants  before  master  examinable  on,  Eq.  R.  65,  S  1063. 
copies  to  be  sent  by  clerk  to  solicitors  of  record,  Eq.  R.  58,  §§  670,  940. 
corporate  officer  to  sign,  Eq.  R.  58,  §§  670,  940. 
court  may  enforce  answers  to,  Eq.  R.  58,  §§  670,  940. 
evidence,  best,  rule  applicable,  §  947. 
evidentiary  matter  not  obtainable  by,  §§  944,  948. 

examination  of  accounting  party  before  master  on,  Eq.  R,  58,  §9  670,  940. 
expert  evidence,  not  to  obtain,  §  949. 
filed  separately,  §  943. 
fishing  expedition,  are  not  for  a,  S  949. 
infringement  may  test,  9  950. 
inquisitorial  are  improper,  9  944. 
material  facts,  9  948. 

motion  to  dismiss  on  plaintiff's  answer  to,  I  890. 
notice  of  motion  to  enforce  answer,  Eq.  R.  58,  99  670.  940. 
objection  to,  form  of,  9  952. 

objections  to,  provisions  as  to,  Eq    R.  58,  99  270,  670,  940. 
opinions,  not  to  obtain,  9  949. 
pleadings,  not  a  part,  9  942. 
prayer  in  bill  does  not  cover,  9  943. 

production  of  papers,  interrogatories  as  a  basis  for,  9  948. 
purpose  of,  9  944. 
subject  of,  matters  disclosed  in  answer  material  to  plaintiff's  case,  9  945. 


1136  INDEX. 

INTEBEOGATORIES   (Continued). 

testimony,  expert,  not  to  obtain,  §  949. 

to  be  answered  separately  and  fully,  in  writing,  under  oath,  and  signed, 

Eq.  R.  58,  §  940. 

waiver,  answer  under  oath  does  not  relieve  from  answering,  §  942, 
when  to  be  answered,  etc.,  Eq.  R.  58,  §§  670,  940. 
when  to  be  filed,  Eq.  R.  58,  §§  670,  940. 
witness,  may  not  be  directed  to,  §  951. 
writings,  as  to,  §  946. 

written,  practice  as  to, ,  to  be  followed  in  case  of  refusal  of  witness 
before  master,  examiner,  etc.,  Eq.  B.  52,  §  390. 

INTERROGATORIES  IN  EQUITY  SUITS, 
by  defendant,  §  670. 
by  plaintiff,  §  662. 
equity,  §§  940,   1011. 
time  for,  §§  662,  670. 

INTERSTATE,  extradition,  §  1315. 

INTERSTATE  COMMERCE, 

commerce  laws,  see  that  heading. 

enforcing  attendance  and  testimony  of  witnesses  under,  5  357. 

exclusive  jurisdiction  in  federal  courts,  part  Act  Oct.  22,  1913,  ch.  32, 

part  §  16,  Interstate  Commerce  Act,  §  82. 
mandamus,  §  1718. 

testimony,  enforcing  in  cases  under,  §  357. 
witnesses,  enforcing  attendance  and  testimony,  §§  335,  357. 

immunity  of,  §  335. 

INTERSTATE  COMMERCE  COMMISSION,  venue  of  suits  affecting  orders 
of,  §  82. 

INTERVENTION,  ch.  28. 

counterclaim,  not  for,  §  9S4. 
when  allowed,  Eq.  R.  37,  §  730. 

INTOXICATING  LIQUORS,  §  1726. 

injunction  against  violation   of  prohibition  laws  Alaska   and  District   of 

Columbia,  §  1121. 
venue  of  prosecutions  for  riolation  of  postal  laws,  §  84. 

INVESTIGATIONS,  oaths,  officers  to  administer,  §  359. 

IOWA,  districts,  terms  and  places  of  holding  court,  §  81,  Jud.  Code,  Appendix. 


INDEX.  1137 

IRRELEVANT  MATTER,  answer  in  equity,  motion  to  strike  from,  5  968. 
motion  to  strike,  ch.  42. 

ISSUANCE, 

habeas  corpus  writs,  |  1335. 
venire  for  jury,  law  actions,  §  590. 
writ  of  error  to  Supreme  Court,  §  1660. 

ISSUE, 

amount  in  controversy,  how  raised,  §  181. 

answer  in  equity,  §  1010. 

answer  as  a  plea  raises  what,  §§  902,  903. 

bill  of  particulars  to  narrow,  §  924. 

cause  at,  upon  filing  of  answer  unless,  etc.,  Eq.  R.  31,  §  669. 

decree  outside  of,  invalid,  §  1145. 

depositions  in  equity  after,  §  373. 

diverse  citizenship,  how  raised,  §  159. 

equity  suit,  §§  669,  675,  1010. 

fact  in  Supreme  Court,  how  raised,  §  1534. 

federal  question,  how  raised,  §  132. 

garnishment,  §  508. 

good  faith,  amount  in  controversy,  §  181. 

joinder  of  parties,  provision  as  to,  Eq.  R.  37,  8  710. 

of  subpoena,  Eq.  R.  12,  §§  791-793. 

process  in  equity,  9  791. 

time   for,  in  equity,  §  1010. 

ISSUE  IN  EQUITY, 

when  no  counterclaim  or  setoff,  §  669. 
when  counterclaim  or  setoff  pleaded,  §  675. 

ISSUE  OF  LAW,  equity  suits,  ch.  39. 

J. 

JOINDER, 

causes  of  action,  Eq.  R.  26,  ch.  30. 

legal  and  equitable  claims  not  permitted  to  make  up  jurisdictional  amount, 
§863. 

JOINDER  OP  CAUSES,  ch.  16. 
legal  and  equitable,  §§  473,  863. 

TOINT  AND  SEVERAL  DEMANDS,  Eq.  R.  42,  §  723. 
bill   in  equity,  §  723. 

JOINT  STOCK  COMPANIES,  diverse  citizenship  of,  §  145. 

Manual — 72 


1138  INDEX. 

JOINT  SUBPOENA,  Eq.  E.  12,  §  79L 

JUDGE,  see   also    Judges. 

chambers,  Eq.  E.  1,  §  822. 

chambers — orders  in,  §  53. 

depositions,  extending  time  for,  §  1023. 

district,  may  make,  direct,  and  award  process,  commissions,  order,  rules, 

etc.,  Eq.  E.  1,  §  822. 

in  chambers,  orders  by,  to  be  entered  in  order  book,  Eq.  E.  31,  Appendix, 
may  suspend,  alter  or  rescind  motion  granted  as  of  course  by  clerk, 

Eq.  E.  5,  §  823. 

on  notice,  if  any,  may  make  interlocutory  orders,  etc.,  Eq.  E.  6.  §  821. 
vacation — orders  in,  §  53. 
verification  of  pleadings  before,  Eq.  E.  36,  §  700. 

JUDGES, 

see  also  District  Judge. 

additional  when  designated,  §  22. 

appeal,  powers  and  duties  on,  §  1510. 

circuit,  acting  as  district  judge,  §  23. 

C.  C.  A.  §  1471. 

court  of  claims,  §  1430. 

court  of  customs  appeals,  §  1452. 

injunctions,  power  to  issue,  §  1101. 

law  action,  trial  by,  §  459. 

number  of  district,  §  20. 

power  to  grant  habeas  corpus  writs,  §  1302. 

state  court,  duty  in  removal  of  causes,  §  19V. 

Supreme  Court,  §  1530. 

trial,  law  actions  by,  §  594. 

JUDGMENT, 

see  also  Decree — Equity  Suits,  ch.  56. 

affirmed,  damages  and  costs  for  delay,  §  1687. 

appellate  review  by  writ  of  error,  §  1650. 

at  law,  see  Judgment  Law  Actions,  ch.  24,  §  462. 

bail,  holding  till  final,  §  1275. 

court  of  claims,  §  1439. 

counterclaim,  enforcement,  §  1439. 

effect  of,  §  1439. 

reports  of,  to  Congress  and  executive  officers,  §  14?J> 

setoff,  enforcement,  §  1439. 
criminal  cases,  ch.  66. 
default  law  actions,  §  542. 
equity  suits,  see  Decree. 


INDEX.  1139 

JUDGMENT    (Continued), 
findings,  9  1141. 
fines,  how  collected,  §  1384. 
garnishment,  §  509. 
indictment,  demurrer  to,  §  1245. 
law  actions,  see  Judgment  Law  Actions,  below, 
removable  by  writ  of  error  to  state  court,  §  1603. 
war  risk  insurance,  §  1724. 

JUDGMENT  LAW  ACTIONS,  ch.  24,  §  462. 
allowance  of  interest  on,  §  623. 
amendment  of,  §  629. 
conformity  to  state  laws,  §  622. 
duties,  suits  for,  kind  of  money  payable  in,  §  624, 
indexes,  §  626. 
interest  on,  §§  623,  624. 
lien  of,  §  627. 

not  divested  by  change  in  district,  §  628. 
rate  of  interest,  §  623. 
record,  index  of,  §  625. 
state  practice,  conformity  to,  §  622. 
vacation  of,  by  motion  for  new  trial,  §  630. 

JUDICIAL  CIRCUITS,  a  C.  A.,  §  147fc 

JUDICIAL  CODE, 

Appendix,  p.  661  et  sea. 

table  of  sections,  Appendix,  p.  1029. 

JUDICIAL  DISTRICTS, 
see  District, 
organization   of,  |  50. 

JUDICIAL  NOTICE, 

motion  to  dismiss  on,  §  889. 

taken  of  the  seal  of  the  Department  of  Commerce  and  Labor,  5  307. 

JUDICIAL  OFFICERS, 

see  Leadings  of  various  courts  and  various  officers  and  next  below, 

ch.  i 

appointment,   disqualification  for,  §  27. 
district  court, 

assistant  district  attorney,  §  35. 


1140  INDEX. 

JUDICIAL  OFFICERS  (Continued), 
district  court   (continued). 

attorney,  admission  of,  §  56. 

bailiff,  §  32. 

circuit  judge  acting  for  district  judge,  $  23. 

clerk,  §  28. 

commissioners,  §  35. 

criers,  §  32. 

deputy  clerks,  §  28. 

deputy  marshal,  30. 

district  attorney,  §  33. 

field  deputy  marshals,  $  31. 

marshals,  §  29. 

JUDICIAL  POWER,  state  sued,  llth  Amend.  Const.,  i  3. 

JUDICIAL  POWER  FEDERAL  COURTS, 
constitutional  provisions,  §§1,  3. 
limitation  of,  i  2. 

JUDICIAL  PROCEEDINGS, 

see,  also,  Procedure,  Pleadings, 
witnesses,  see  that  heading,  ch.  12, 
immunity  of,  see  Immunity. 

JUDICIAL  RECORDS,  copies  of  lost  or  destroyed  records  as  evidence,  §  280 

JURISDICTION, 

see   also   headings  various  courts. 
agriculture,  district  court,  §  91. 
alien  enemies,  district  court,  §  99. 

duties  of  marshal,  §  100. 
aliens  against  federal  officers,  removal,  §  206. 
amending  to  show,  §  179. 
amount  in  controversy  how  affects,  ch.  8. 

how  affected  by  aggregating  amounts,  §  178. 
appellate,  circuit  court  of  appeals,  see  that  heading,  ch.  71. 
appellate,  district  court,  see  that  heading,  §  104  et  seq. 
appellate  jurisdiction, 

Chinese  exclusion  laws,  district  court,  §  101. 

consular  awards,  district  court>  §  106. 

Supreme  Court,  see  that  heading,  ch.  73. 

Yellowstone  National  Park,  district  court,  §  105. 
arbitration  disputes,  common  carriers  and  employees,  §  114. 
arrest  of  seamen  on  application  of  consul,  §  108. 
assignment,  by,  §  97. 
awards  of  consuls,  power  to  enforce,  §  107. 


INDEX.  1141 

JURISDICTION   (Continued). 

basis  of,  diverse  citizenship,  ch.  7. 

federal  question,  ch.  6. 

bias  as  a  ground  for  removal  from  state  court,  §5  191,  200. 
bill  in  equity,  allegations  of  grounds  of,  §  695. 
canals,  to  remove  obstructions,  district  court,  §  102. 
carrier,  employers'  liability  not  removable  to  federal  court,  §  204. 
ccrtiorari  in  removal  cases,  §  212. 
change  of  citizenship  to  create,  §  156. 
change  of  domicile  after  suit,  §  155. 
Chinese  exclusion  laws,  §  104. 
circuit  court  of  appeals,  see  Appellate  Jurisdiction  of  Circuit  Court  of 

Appeals,  ch.  71. 
civil  rights  casee,  §  207. 

commitment  of  seamen  on  application  of  consul,  §  109. 
concurrent  district  and  state  courts,  §  93. 
congressional  officers,  removal  of  suits  against,  §  209. 
constitutional  question,  ground  for,  §  124. 
consular  awards,  power  to  enforce,  §  107. 
consuls,  foreign,  over  disputes  between  seamen,  §  108. 
court  of  claims,  see  subhead  jurisdiction  under  heading  Court  of  Claims, 

1 1432. 

court  of  customs  appeals,  §  1454. 
courts  established  by  Cocgress,  §  3. 
crimes  on  Indian  reservations,  South  Dakota,  9  106. 
criminal,  ch.  59. 

criminal,  of  district  court,  §  1200. 
customs  duties,  §  101. 
district  court,  appellate,  §§  90,  104,  105,  107. 

concurrent,  §§  90,  93. 

criminal,  §  2.1  OD. 

exclusive,  §§91,  92. 

generally,  ch.  5,  §  90. 

in  general,  §  190. 

original,  §§90,  94. 

original  and  appellate,  ch.  5,  §  90. 

see  Appellate  Jurisdiction  District  Court, 
discharge  from  arrest,  of  seamen,  §  110. 
diverse  citizenship,  a  ground   for,  ch.  7,  §  1. 

ground  for  removal,  §§  191,  193. 
duties,  district  court,  §  101. 

employers'  liability  cases  against  common  carriers  not  removable,  5  204. 
equitable   wholly   failing  not  retained,  §  863. 
equity,  legal  relief  in,  §  861. 
exclusion  of  Chinese,  f  104. 


1142  INDEX. 

JURISDICTION   (Continued). 

exclusive  in  district  court,  of  state  courts,  §§91,  92. 
exclusive,  Supreme  Court,  §  1534. 
federal  courts  in  general,  ch.  1. 
federal  courts  enumerated,  §  4. 

functions  of,  §  1. 

limited  consent  cannot  confer,  §  2. 
federal  laws,  question  under,  ground  for,  §  125. 
federal  officers,  aliens  against,  removal,  §  206. 

oertiorari,  §  212. 

congressional,  removal  of  suits  against,  §  209. 

revenue,  removal  of  suits  against,  §  209. 
federal  question  as  a  ground  of,  ch.  6,  §  1. 

for  removal,  §§  126,  191,  192. 

original,  §  125. 

foreign  consuls  over  disputes  between  seamen,  §  108. 
ground  for,  diverse  citizenship,  ch.  7,  §  1. 

federal  question,  eh.  6. 

original,  federal  question,  §  125. 

removal  federal  question,  §  126. 
grounds,  law  action  allegations  of,  §  471. 
ground  on  which  depends  to  be  stated  in  bill,  Eq.  R.  25,  §  695. 
habeas  corpus  writs,  §§  1331,  1333. 
harbors,  to  remove  obstructions,  §  102. 
immigration  laws, 

prosecutions,  §  96. 
income  tax  law,  §  113. 

Indian  reservation,  South  Dakota,  crimes  on,  §  106. 
interpleader  insurance  companies,  §  95. 
land  grants,  §  205. 

laws  of  United  States,  question  under,  ground  of,  §  125. 
nonresident,  §  66. 

obstructions  in  rivers,  harbors,  and  canals,  §  102. 
officers,  aliens  against,  removal,  §  206. 

certiorari,  §  212. 

congressional,  suits  against  removal,  §  209. 

revenue  suits  against,  removal,  §  209. 
original,  federal  question  ground  for,  ch.  6. 

diverse  citizenship  a  ground  for,  ch.  7. 

of  district  court,  §  24,  Jud.  Code,  §  94. 
original  of  Supreme  Court,  §  1534. 
parties,  shifting  to  create,  §  159. 

prejudice  as  a  ground  for  removal  from  state  court,  §§  191,  200. 
publication  of  process,  §  66. 
question  of,  what  is,  §  1552. 
receiver  over  real  property  outside  the  district  of  his  appointment,  §  6*7. 


INDEX.  1143 

JURISDICTION   (Continued), 
reclamation  act,  §  10. 

"remedy  at  law"  discussed,  §  267,  J«d.  Code,  eh.  37. 
removable  by  writ  of  error  to  state  court  of  last  resort,  see  that  heading, 

9 1601. 

removal  of  causes,  see    also    that  heading, 
class  1,  federal  question,  §  192. 

2,  diverse  citizenship,  §  193. 

3,  separable  controversy,  §  194. 

4,  bias  or  prejudice,  §  200. 

5,  land  grants  of  different  states,  §  205. 

6,  aliens  against  federal  officers,  §  206. 

7,  civil  rights  cases,  §  207. 

8,  cases  against  congressional  and  revenue  officers,  S  209. 
restraining  to  afford  complete  relief,  §  861. 

revenue  officers,  removal  of  causes  against,  S  209. 

rivers,  obstructions  in,  §  102. 

seamen,  foreign  consuls  over,  §§  108,  109. 

separable  controversy,  removal  of,  §§  191,  194. 

shifting  .parties  to  create,  §  157. 

South  Dakota,  Indian  reservation,  crimes  on,  §  106. 

state  court's,  concurrent  with  district,  §  93. 

exclusive  of,  in  district  court,  §§  91,  92. 

after  removal,  §  197. 
substituted  service,  §  66. 
Supreme  Court,  see  Appellate  Jurisdiction  of  the  Supreme  Court,  ch.  73. 

exclusive,  §  1534. 

original,  §  1534. 
territorial,  see  Venue,  ch.  4. 

see  Places  of  Holding  District  Court,  ch.  5,  Jud.  Code,  Appendix. 

cases  transferred,  §  111. 
trading  with  the  enemy  act,  §  1719. 
transfer  of  subject  matter  to  create,  §  156. 
transferred  cases  from  territorial  courts,  §  111. 
treaties,  question  under,  ground  for,  §§  125. 
venue  as  affecting  in  case  of  diverse  citizenship,  S  158. 
venue  or  district  of  suit,  ch.  4. 
war  risk  insurance,  §  1724. 
waiving  jurisdiction  as  to  venue,  §  86. 
white  slave  traffic,  §  103. 
writ  of  error  under,  §  237,  Jud.  Code,  §  1601. 
Yellowstone  National  Park,  §  105. 

JURISDICTION  OP  DISTRICT  COURTS,  ch.  5.  §  24.  -Tod.  Code. 
equitable  as  distinguished  from  legal,  §55,  6. 
federal  as  distinguished  from  state,  §  10. 


1144  INDEX. 

JURORS, 
fees  of, 

grand  jurors,  §  425. 

list  of,  to  be  given  person  indicted  of  treason  or  capital  offense,  §  1363. 

payment,  how  made,  §  426. 

petit  jurors,  §  425. 

JURY,  challenges,  in  law  actions,  §  593. 
charge  to,  in  law  actions,  §§  461,  599. 
conduct  of  trial  in  law  actions,  §  598. 
constitutional  in  law  actions,  twelve  men,  §  583. 
criminal  cases,  §  1224. 
drawing  in  law  actions,  §  588. 
equity,  in,  §§5,  862. 

excluding,  penalty  under  civil  rights  acts,  §  586. 
exemptions  of, 

after  one  term  of  service  in  a  year,  §  587. 

under  civil  rights  acts,  §  585. 
grand,  ch.  60. 

grand  jury,  see  that  heading,  §§  12-20,  1224. 
impaneling  in  law  actions,  §  589. 
instructions  to,  in  law  actions,  §  599. 
petit  juries,  law  actions,  §§  581,  593. 
qualifications  in  law  actions,  §  593. 

penalty  for  exclusion,  §  586. 

under  civil  rights  acts,  §  585. 
return  of  venire,  §  590. 
special,  §  592. 

Supreme  Court  for  issues  of  fact,  §  1534. 
talesmen  for  petit.  §  591. 
trial  by,  at  law,  §  458. 
trial,  law  actions,  twelve  men,  §  583. 

from  where  drawn,  §  588. 
yenire,  issuance  and  return  of,  §  590. 
verdict,  law  actions,  §  461. 

JURY  IN  EQUITY,  §§  5,  862. 

JUSTICE,  injunctions,  power  to  issue,  §  1101. 

convenient  administration  of,  joinder  of  causes  of  action  to  promote,  Eq. 
R.  26,  ch.  30. 

JUSTICES,  Supreme  Court,  §  1530. 


INDEX.  1145 

E. 

KANSAS,    district*,    terms    and    places   of    holding    court,    $  82,    Jud.    Code, 
Appendix. 

KENTUCKY, 

calling  hail  in,  §  1265. 

districts,  terms  and  places  of  holding  court  in,  §  83,  Jud.  Code,  Appendix. 

/ 

L. 

LABELS,  trading  with  the  enemy  act,  suits  under,  §§  1722,  1723. 

LACHES,  motion  to  dismiss  for,  §  888. 
must  be  explained  in  bill,  §  696. 

LAND,  decree  for  conveyance  of,  attachment  in,  Eq.  B.  8,  55  473,  1112,  1140, 
1143. 

LAND  GRANTS, 

amount  in  controversy  in  suits  involving,  5  172. 
removal  of  causes,  class  five,  5  205. 

LAND  OFFICE,  records,  certification  of  copies  as  evidence,  5  297« 
LAND  PATENTS,  sea  Patent* 

LAW, 

matters  ordinarily  determinate  at,  when  arising  in  suit  in  equity,  to  be 

disposed  of  therein,  ch.  38,  Eq.  R.  23, 5  860. 
objection  on  point  of,  in  equity,  i  880. 
points  of,  may  be  disposed  of  before  final  hearing,  Eq.  R.  29,  55  880,  900. 

LAW  ACTION  (Summarized  ch.  15). 

adjournments,  see  Continuances,  ch.  20,  5  456. 
amendment,  nee  that  heading,  5  455. 
appellate  review  by  writ  of  error,  §  1650. 
appellate  procedure  at  law,  ch.  75. 
attachment,  see  that  heading,  ch.  17,  5  452, 
begun  when,  5  521. 
charge  to  jury,  §  461. 
complaint,  ch.  16,  5  474. 
conduct  of  trial,  §  598. 
conformity  to  state  practice,  |  7. 
consolidation,  §  570. 
continuances,  ch.  20. 


1146  INDEX. 

LAW  ACTION  (Continued), 
default,  §  542. 

defensive  pleading,  see  Defensive  Pleading  Law,  ch.  19. 
depositions,  see  that  heading,  ch.  13,  §  416. 

time  for  taking,  §  371. 
differences  law  and  equity,  §  6. 
discovery,  §  571. 
dismissal,  §  573. 
equitable  defense,  §  545. 
equity,  filed  in;  transferred,  ch.  37. 

equity  suit,  begun  as,  transfer,  Eq.  R.  22,  ch.  37,  §§  5,  472,  474. 
evidence,  see  that  heading,  eh.  11,  §  460. 
execution,  see  that  heading,  ch.  24,  §  593. 
form  of  complaint,  §  474. 
garnishment,  see  that  heading,  ch.  17,  §  452. 
initial  pleading,  see  that  heading,  ch.  16,  §  451, 
judge,  trial  by,  §§  459,  594. 
judgment,  see  that  heading,  ch.  24,  §  426. 
jury,  charge  to,  §  461. 
jury  trial,  §§  458,  581,  593. 
jury  verdict,  §  461. 
•method  of  trial,  §  581. 
mode"  of  proof  in,  §  595. 
motion  for  new  trial,  §  613. 
new  trial,  §  462. 

motion  for,  §  613. 
nonsuit,  §  573. 

process,  see  that  heading,  ch.  18,  §  483. 
rules  governing,  §  57. 
summary,  ch.  15. 

Supreme  Court,  action  in1,  issues  of  fact,  §  1534. 
trial,  see  Trial  Law  Actions,  ch.  22* 
trial  by  judge,  §  459. 

jury,  §458. 

verdict,  ch.  23,  §§  461,  611. 
witnesses,  see  that  heading,  ch.  12,  §  460. 

LAW  ACTIONS, 

adequate  remedy,  ch.  37. 

LAW  LIBRARY,  see  Library. 

LAW  OF  NATIONS,  habeas  corpus,  §  1343. 

LAW  PROCEDURE,  see  Law  Actions,  and  Procedure 

LAW  SIDE,  motion  to  transfer  from  equity,  §  840. 


INDEX.  1147 

LAWS  OF  THE  UNITED  STATES, 
see,  also,  Federal  Laws, 
federal  question  arising  under,  §  125. 

LAWYERS,  see  Attorneys. 

LEAVE  OF  COURT,  receivers,  suits  against,  without,  I  1082. 

LEGAL  ISSUES,  equity  wholly  failing,  not  determined  in  equity,  §  863. 

LEGAL  RELIEF  IN  AN  EQUITY  SUIT,  ch.  38,  §  860. 

LETTER,  call  for  admission  of  genuineness  of,  etc.,  Eq.  R.  58,   §§  670,  940. 

LETTERS, 

seizure  and  detention  of,  carried  contrary  to  law,  §  1716. 
same,  disposal  of,  9  1717. 

LETTERS  ROGATORY,  depositions  in  foreign  country,  §  393. 
LIBEL,  condemnation  food  products  and  fuel,  §  1725. 

LIBRARY, 

circuit  court  of  appeals, 

Rule  31  C.  C.  A.  (6th  Circuit)  Appendix. 
Bale  33  C.  C.  A.  (7th  Circuit)  Appendix. 

LIEN, 

attachment,  §  490. 

decree  equity  suits,  §  1144. 

decree,  not  divested  by  creation  of  new  district  or  division,  §  1147. 

enforcement  of,  venue,  5  70. 

execution,  not  divested  by  formation  of  new  district,  8  628. 

judgment  law  actions,  §  627. 

not  divested  by  creation  of  new  district,  §  628. 
venue,  §  66. 
vessel  for  repairs,  etc.,  §§  1714,  1715. 

LIMITATION  OF  ATTACHMENT, 

claim  to  property  in  alien  property  custodian,  §  513. 

LIMITATIONS,  see  Statute  of  Limitations,  ch.  10. 
LIQUOR  NUISANCE,  injunction  abating,  §  H2L 

LITTLE  AND  BROWN'S  EDITION, 
federal  laws,  evi.ience,  §  271. 
same,  supplement  Revised  Statutes,  §  272. 


1148  INDEX. 

LOCAL  SUIT, 

venue  of,  subject-matter  partly  within   different  districts,  §  65. 
venue  of,  against  defendant  in  different  district,  same  state,  §  64. 

LOSS,  immediate  and  irreparable,  to  be  shown  on  application  for  temporary 
restraining  order,  Eq.  R.  73,  §  1103. 

LOST  OE  DESTROYED  JUDICIAL  RECORDS,  copies  as  Evidence,  see  Res- 
toration of  Records,  §  280. 

LOST  RETURNS  AND  OFFICIAL  PAPERS,  judicial  officers,  copies  as  evi- 
dence, §  2-84. 

LOST  SUPREME  COURT  RECORD,  copies  as  evidence,  §  282. 

LOUISIANA,   district,   terms  and  places  of  holding  court,  §  84,   Jud.    Code, 
Appendix. 

LUNATIC,  nothing  to  be  taken  against  aa  confessed,  Eq.  K.  30,  §  964. 


M. 

MAILING,  orders  -without  notice,  Eq.  B.  4,  §  825. 

MAINE,  districts,  terms  and  places  of  holding  court,  §  85,  Jud.  Code,  Appendix. 
MAINTENANCE,  court  of  claims,  §  1430. 

MAKING  UP  RECORDS,  circuit  court  of  appeals,  Addenda  Rule  45  C.  C.  A. 
Appendix. 

MANDAMUS, 

circuit  court  of  appeals,  Rule  33  C.  C.  A.  (6th  Circuit)  Appendix. 

error  in  striking  out  matter,  not  corrected  by,  §  933. 

Interstate  Commerce  Act,  §  1718. 

Supreme  Court,  §  1534. 

same,  to  revise  and  correct  proceedings  of  lower  courts,  §  1562. 

MANDATE,  §  1690. 

circuit  court  of  appeals. 

Bule  32  C.  C.  A.  Appendix. 

Bule  29  C.  C.  A.  (6th  Circuit)  Appendix. 

Bule  30  C.  C.  A.  (7th  Circuit)  Appendix. 

MANDATORY  ORDEHS, 

compelling  obedience,  Eq.  R.  8,  §§  473,  1112,  1140,  1143. 
contempt  for  noncompliance,  Eq.  R.  8,  §§  473,  1112,  1140,  1143. 


INDEX.  1149 

MANNER,  defensive  pleading  at  law,  §  544. 
MARITIME,  liens  on  vessels  for  repairs,  etc.,  §§  1714,  171& 
MARRIED  WOMEN,  diverse  citizenship  of,  9  148. 

MARSHAL, 

circuit  court  of  appeals,  Rule  6  C.  C.  A.  Appendix,  §  1471. 

civil  rights  laws,  fees  of,  §  414. 

court  of  customs  appeals,  5  1452. 

deputy,  etc.,  to  serve  all  process,  except,  Eq.  B,  15,  S  796. 

district  court,  §§  29,  31. 

duties  as  to  alien  enemies,  9  100. 

fees,  district  court,  §  413. 

Supreme  Court,  S  1530. 

MARYLAND,  districts,  terms  and  places  of  holding  court  in,  §  86,  Jnd.  Code, 
Appendix. 

MASSACHUSETTS,  districts,  terms  and  places  of  holding  court  in,  S  87,  Jud. 
Code,  Appendix. 

MASTER, 

accounts,  form  of,  before,  Eq.  R.  63,  §  1063. 
accounts,  form  of,  rules  as  to,  §  1065. 
accounts  identified  in  report  of,  Eq.  R.  61,  9  1070. 
accounts,  reference  of,  to,  Eq.  B.  69,  §  1061. 

affidavit  previously  used  in  court  may  be  used  before,  Eq.  R.  64,  9  1063. 
answer  identified  but  not  stated  in  report,  Eq.  R.  61,  $  1070. 
appointment,  §  1060. 

attendance  of  witnesses  before,  Eq.  R.  52,  9  380. 
bankruptcy  matters,  §  1074. 
books  produced  before,  Eq.  R.  62,  §  1063. 
charge  identified  in  report,  Eq.  B.  61,  §  1070. 
claimants  before,  may  be  examined  by  him,  Eq.  B.  65,  S  1063. 
compensation,  Eq.  B.  68,  §  1060. 
conclusions  on  facts  presumed  correct,  9  1073. 
confirmation  of  report,  §  1072. 

contempt,  witness  in  for  refusing  to  appear  before,  Eq.  B.  52,  9  390. 
costs  on  reference  to,  Eq.  R.  59,98  1061,  1070. 
court  may  appoint  standing,  Eq.  R.  68,  8  1060. 
delays,  reasons  for  to  be  certified  by,  Eq.  R.  60,  §  1062. 
depositions  in  case  may  be  used  before  master,  Eq.  B.  64,  9  1063. 
depositions  may  be  taken  by,  Eq.  R.  52.  9  390. 

draft  report,  exceptions  to  not  sufficient  as  objections  to  report  as  filed, 
9  1071. 


1150  INDEX. 

MASTER  (Continued). 

duties  of.  Eq.  R.  60,  §  1062. 

entitled  to  attachment  for  his  compensation,  •when,  Eq.  R.  68,  §  1060. 
evidence  before,  to  be  taken  down,  Eq.  R.  65,  §  1063. 
evidence,  mode  of  proof  directed  by  master,  Eq.  R.  62,  §  1063. 
exceptional  matters,  referred  to,  illustration,  §  1064. 
exceptions  to  report,  §§  1070,   1071. 

former  depositions,  etc.,  may  be  used  before,  Eq.  R.  64,  §  1063. 
form  of  accounts  before,  Eq.  R.  63,  §  1063. 
form  of  order  on  accounting,  §  1062. 
hearing  of  reference,  §  1062. 
hearings  public  in  anti-trust  cases,  §  396. 

in  chancery,  standing,  may  be  appointed  by  the  court,  Eq.  R.  68,  §  35. 
interrogatories   on  accounting,   Eq.   R.   58,  §§  670,   940. 
may  adjourn  examination,  etc.,  when,  Eq.  R.  60,  §  1062. 
may  proceed  ex  parte  when,  Eq.  R.  60,  §  1062. 

may  require  production  of  all  books,  papers,  etc.,  Eq.  R.  62,  §  1063. 
method  of  proceedings,  §  1062. 
notice  of  proceedings  before,  Eq.  R.  60,  §  1062. 

not  to  retain  report  as  security  for  compensation,  Eq.  R.  68,  §  1060. 
order  an  accounting,  form  of,  §  1062. 
-  power  of,  Eq.  R.  62,  §  1063. 
proceedings  before,  Eq.  R.  60,  §  1062. 
pro  hoc  vice,  in  particular  cases,  may  be  appointed  by  court,  Eq.  B.  68, 

§1060. 

reference  by  consent,  effect  of,  §  1075. 
reference  to,  exceptional  not  usual,  Eq.  R.  59,  §  1061. 
regulation  of  proceedings,  §  1063. 

report,  after  filing,  plaintiff  may  not  voluntarily  dismiss,  §  1130. 
report   when   reference   by   consent,    effect   of,  §  1075. 
report  returned  to  office  of  clerk,  Eq.  R.  66,  §  1070. 
reports  of  identify  but  do  not  state  affidavit,  etc.,  Eq.  R.  61,  §  1070. 
to  proceed  with  reasonable  diligence,  Eq.  R.  60,  §  1062. 
to  regulate  all  proceedings  before  him,  Eq.  R.  62,  §  1063. 
•    witnesses,  attendance  before,  Eq.  R.  52,  §  390. 

MASTERS  IN  CHANCERY,  eh.  50,  see  heading  Master,  above. 

MASTER'S  REPORT,  ch.  52, 

costs  on  exception  to,  Eq.  R.  67,  §  1070. 

depositions  not  set  forth  but  referred  to,  Eq.  R.  61,  §  1070. 

return  of — exceptions — hearing,  Eq.  R.  66,  §  1070. 

MATERIAL  SUPPLEMENTAL,  matter  may  be  set  forth  in  amended  plead- 
ings, Eq.  B.  19,  §  760. 


INDEX.  1  ]  ;,  1 

MATERIALITY  OF  QUESTIONS  not  to  be  decided  by  examiner,  Eq    8    51 
9381. 

MATTER, 

further  and  better  particulars  of,  in  any  pleading  may  be  ordered,  En   R. 
20,   ch.   41,  §967. 

new  or  affirmative,  in  answer,  deemed  denied  by  plaintiff,  Eq.  R.  31,  ch.  47. 

• 

MATTERS  ordinarily  determinate  at  law,  when  arising  in  suit  in  equity,  to 
be  disposed  of  therein,  Eq.  R.  23,  ch.  38. 

MERITS,    hearing   on— making   and    directing    interlocutory    motions,    orders, 
rules,  etc.,  preparatory  to,  Eq.  R.  1,  §  822. 

MESNE  PROCESS, 

issuing  and  returning,  Eq.  R.  1,  §  822. 
motions  for,  grantable  by  clerk,  Eq.  R.  5,  §  823. 
subpoena  shall  constitute  proper,  Eq.  R.  7,  §  790. 
to  be  served  by  marshal,  deputy,  etc.,  Eq.  R.  15,  {  798. 

MESSENGERS,  Supreme  Court,  §  1530. 

METHOD, 

appeals,  taking  of,  circuit  court  of  appeals. 

Addenda  Rule  45  C.  C.  A.  Appendix, 
master  in  chancery  proceedings,  |  1063. 
trial,  law  actions,  §§  581,  582. 

MICHIGAN,   districts,   terms   and   places   of   holding   court,  9  88,  Jud.   Code, 
Appendix. 

MILEAGE, 

amount  of,  for  witnesses,  5§  349,  350. 
double  for  witnesses,  prohibited,  9  350. 

fees  of  witnesses,  see  Fees;  Witnesses,  §§  348,  349,  350,  353,  356. 
witnesses,  amount  and  fees,  99  348,  349,  350. 
double  prohibited,  |  350. 
generally,  9§  348,  349,  350. 

MILITARY  TRAINING  CAMPS,  condemnation  of  land  for.  5  1727. 

MINNESOTA,  districts,  term*  and   places  of  holding  court,  9  89,  Jud.  Code, 
Appendix. 

MISCELLANEOUS  MATTERS,  LAW  ACTIONS,  ch.  21. 


1152  INDEX. 

MISFEASANCE  DEPUTY  CLERK,  Supreme  Court,  §  1530. 

MISJOINDER, 

defense  of,  how  presented,  Eq.  R.  29,  §§  880,  900. 
see  Multifariousness,  ch.  30. 

MISSISSIPPI,  districts,  terms,  and  places  of  holding  court,  §  90,  Jud.  Code, 
Appendix.  * 

MISSOURI,   districts,    terms   and   places   of   holding   court,  §  91,   Jud.    Code, 
Appendix. 

MISTAKES,  decree,  equity  suits,  correction  of,  §  1160,  see,  also,  Rehearing. 

MODELS, 

circuit  court  of  appeals. 

Rule  34  C.  C.  A.  Appendix. 

Rule  32  C.  C.  A.  (3d,  7th,  8th  and  9th  Circuits)    Appendix. 

MODE  OF  PROOF,  trial,  law  actions,  §  595. 
MODE  OF  RECOVERY,  costs  and  fees,  §  408. 

MODE  OF  TAKING, 

depositions  de  bene  esse,  §  379. 
taking  depositions  de  bene  esse,  §  379. 

MODIFICATION,  temporary  restraining  order,  §  1105. 

1      Lj_ 

MONEY, 

decree  for,  enforced  by  execution,  Eq.  R.  8,  §§  473,  1112,  1140,  1143. 

paid  into  court,  §  1712. 

payment  of,  final  process  to  execute  decree   for,  Eq.  R.  8,  §§  473,   1112, 

1140,  1143. 
withdrawal  of,  paid  into  court,  §  1713. 

MONTANA,    districts,    term   and    places   of   holding   court,  §  92,    Jud.    Code, 
Appendix. 

MORTGAGE,  decree  for  deficiency,  Eq.  R.  10,  §  1140. 

MORTGAGES,  foreclosure  of,  decree  for  balance  due,  Eq.  R.  10,  §  1140. 

MOTION,  See  also  Motions  of  various  kinds  below,  and  heading  Motions, 
better  statement,  to  obtain  (equity),  §  920,  see  Bill  of  Particulars,  §  921. 
certainty,  to  obtain  (equity),  §  920,  see  Bill  of  Particulars,  §  921. 


INDEX.  1153 

MOTION    (Continued). 

circuit  court  of  appeals, 

Rule  21  C.  C.  A.;  Rule  24  C.  C.  A.  (6th  Circuit)  Appendix, 
defect  of  parties,  to  dismiss  for  (equity),  §§  824,  880,  886,  *JOO. 
defensive  pleading  in  equity,  see  that  heading,  ch.  36. 
definiteness,  to  obtain,  equity,  §§  920,  922,  see  Bill  of  Particulars,  §  924. 
dismiss,  to  (equity),  see  Motion  to  Dismiss,  below. 

decree  pro  oonfesso,  saves  from,  §  883. 

on  point  of  law,  ch.  39. 

time  for  answer  after  overruling,  §  667. 
disposal  of,  Eq.  R.  6,  §  821. 
equity  suits,  see  that  heading,  ch.  25. 
grantable  of  course  (equity), §  823. 
impertinent   matter,  to   remove    (equity),  §  930. 
irrelevant  matter,  to  remove   (equity),  §  930. 
motion  day   (equity),  §  821. 
motion  to  dismiss,  see  that  heading,  below, 
new  trial  (law),  ch.  23,  §  613. 

execution  stay  of,  pending,  §  633. 
notices  (equity),  §  822. 
notice  of  orders  (equity),  §  825. 

obtaining  better  statement  and  particulars   (equity),  §  920. 
particulars  to  obtain  (equity),  §  920. 
pro  confesso,  for  grantable  of  course,  Eq.  R.  5,  §  823. 
produce  books  or  papers,  §  572. 
redundant  matter,  to  strike   (equity),  5  930. 

removal  of  redundant,  scandalous,  or  impertinent  matter  (equity),  §  930. 
scandal,  to  remove   (equity),  §  930. 
statement,  better  and  particulars  (equity),  $  920. 
strike  out, 

answer  in  equity,  counterclaim  or  setoff,  §  967. 

counterclaim  or  setoff  in  answer  in  equity,  §  967. 

defense  (equity),  §  673. 

redundant,  scandalous,  or  impertinent  matter   (equity),  §  MO. 

setoff  in  answer  in  equity,  §  967. 
transfer  action  to  law  side,  §  840. 

MOTION  DAY,  circuit  judge  may  dispense  with  when,  Eq.  R.  6,  §  821. 
MOTION  DAY  IN  EQUITY,  $  821. 

MOTION    F.OR    FURTHER    AND    BETTER    STATEMENT    OF    CLAIM, 
Eq.  R.  20,  ch.  41,  55  920,  967. 

MOTION  TO  DISMISS,  ch.  39. 

admits  allegations  well   pleaded,  §  882. 
Manual — 78 


1154  INDEX. 

MOTION  TO  DISMISS  (Continued), 
affidavits  not  considered  on,  §  883f. 
allegations  of  bill  admitted  on,  §  882. 

answer  to  be  filed  within  five  days  after  denied,  Eq.  E.  29,  §§  880,  900. 
after  answer  to  interrogatories,  §  890. 
decree  from,  §  891. 
defense  in  bar,  setting  up  in,  §  887. 

defenses  to  be  presented  in,  Eq.  E,  29,  ch.  39,  §§  880,  900. 
demurrer  equivalent,  §§  882,  883. 
denied  when  proof  required,  §§  883,  901. 
effect  of,  §  883. 

evidence  not  considered  on,  §§  883,  901. 
exhibits  to  pleadings   considered   on,  §  883. 
form   of,  §  891. 

form  of,  federal  question  improperly  pleaded,  §  131. 
form  of,  improper  venue,  §  86. 
form  of,  lack  of  diverse  citizenship,  §  159. 
hearing,  setting  down  for,  Eq.  E.  29,  §§  880,  900. 
illustration  of,  §  891. 
interrogatories,  on  answer  to,  §  890. 
judicial  notice  in  aid  of,  §  88<9. 
laches,  §  888. 
nonjoinder,  §  886. 
notice  of.  Eq.  E.  29,  §§  880,  900. 
statute  of  limitations,  plea  of,  §§  885,  891. 
suits  pending,  plea  not  considered  on,  §  884. 

MOTION   TO   ENFOECE   answer   to  interrogatories   notice   of,   E!q.    E.    58, 
§§  670,  940. 

MOTION  TO  MAKE   MOEE   DEFINITE   AND   CEETAIN,   ch.   41,   costs, 
Eq.  B.  20,  §§  920,  867. 

MOTION  TO  SET  ASIDE  DECEEE  PEG  CONFESSO,  answer  when  to  be 
filed  on,  Eq.  E.  17,  §  813. 

MOTION  TO  STEIKE  answer  for  failure  to  answer  interrogatories  or  pro- 
duce  documents,   Eq.   E.    58,  §§  670,    940. 

MOTION  TO  STEIKE  OUT,  ch.  46. 

answer  insufficient,  Eq.  E.  33,  ch.  46,  §  967. 
form  of,  §  1002. 
illustration  of,  §  1001. 
notice   of,  §  1000. 


INDEX.  1155 

MOTION  TO  STRIKE  REDUNDANT  MATTER,  ch.  42. 

MOTIONS, 

and  applications  not  requiring  order  of  court  or  judge  grantable  of  course 
^        by  clerk  Eq.  R.  5,  §  823. 
etc.,  grantable  of  course,  received  and   disposed  of  by  clerk,  Eq.   R.   2, 

Appendix. 

ex  parte  or  grantable  of  course,  §  821. 

for  mesne  process  grantable  of  course  by  clerk,  Eq.  R.  5,  §  823. 
grantable  of  course  by  clerk,  Eq.  R.  5,  §  823. 

may  be  suspended,  etc.,  by  judge,  Eq.  R.  5,  §  823. 
interlocutory,  making  and  directing,  Eq.  R.  1,  §  822. 
requiring  notice  and  hearing,  times  and  places  for,  Eq.  R.  6,  §  821. 
to  enlarge  time  for  filing  answer,  Eq.  R.  17,  §  813. 
to  strike  out,  to  test  sufficiency  of  answer,  Eq.  R.  33,  ch.  46,  §  967. 
when  may  be  made,  Eq.  R.  1,  §  822. 
will  not  be  granted  unless  payment  of  costs,  etc.,  Eq.  R.  17,  §  813. 

MULTIFARIOUSNESS,  new  Rule  26,  ch.  30. 

N. 

NAME, 

circuit  court  of  appeals, 

Rule  1  C.  C.  A.  Appendix. 

§  1  Rule  2  (6th  Circuit)  under  Rule  1  C.  C.  A.  Appendix, 
each  party,  must  be  stated  in  bill,  Eq.-  R.  25,  §  694. 
names  of  parties  in  subpoena,  Eq.  R.  12,  §  791. 

NATIONAL  BANKS, 

Comptroller  of  Currency — enjoining — venue,  §  78. 

diverse  citizenship  of,  §  147. 

exempt  from  attachment,  §  480. 

federal  question  not  necessarily  involved  when  same  is  party,  9  123. 

injunction  against  receivership  proceedings,  §  1116. 

injunction,  no  interlocutory  against  in  state  courts,  9  1117. 

organization  certificates,  copies  as  evidence,  §  289. 

receivership,  injunction  against,  §  1116. 

stockholder's  liability  statute  of  limitations,  9  252. 

NATURALIZATION    LAWS,    statutes    of    limitations    for    offenses    against. 
8237. 

NAVY,  records,  copies  as  evidence,  in  suits  against  delinquents,  9  291. 
NAVY  COURT-MARTIAL,  indictment,  9  1242. 


1156  INDEX. 

NEBRASKA,   districts,  terms   and  places  of  holding  court,  §  93,  Jud.   Code, 
Appendix. 

NECESSARIES,  lien  on  vessel  for,  §  1714. 

• 
NB  EXEAT,  writ  of,  §  1113. 

NEVADA,    districts,    terms    and    places   of   holding   court,  i  94,    Jud.    Code, 
Appendix. 

NEW  DISTRICTS  CREATED,  venue  of  action,  §  69. 
liens  preserved,  §  70. 

NEW  HAMPSHIRE,  districts,  terms  and  places  of  holding  court,  §  95,  Jud. 
Code,  Appendix. 

NEW  JERSEY,  districts,  terms  and  places  of  holding  court,  §  96,  Jud.  Code, 
Appendix. 

NEW  MEXICO,  districts,  terms  and  places  of  holding  court,  §  13,  Act  June 
20,  1910,  ch.  310  following  §  96,  Jud.  Code,  Appendix. 

NEW  TRIAL, 

court  of  claims,  §  1438. 

execution,  stay  of,  pending  motion,  §  633. 

law  action,  §  462. 

motion  for,  §  613. 

NEW  YORK,  districts,  terms  and  places  of  holding  court,  §  97,  Jud.  Code, 
Appendix. 

NEWLY  DISCOVERED  EVIDENCE,   rehearing  for,  §§  1162,   1163. 
NOMINAL  PARTIES,  Eq.  R.  40,  §  721. 
NONCONFORMITY  STATUTES,  §  57. 

NON  EST  INVENTUS,  return  of,  issuance  of  writ  of  sequestration,  Eq.  R. 
8,  §§  473,  1112,  1140,  1143. 

NONJOINDER,  defense  of,  how  presented,  Eq.  R.  29,  §§  880,  900. 
motion   to   dismiss  for,  §  886. 
nonresidents,  §  74. 

NONLOCAL  SUITS, 

venue  in  district  of  more  than  one  division,  §  63. 
venue  in  state  of  more  than  one  district,  §  62. 


IND&X.  1157 

NONRESIDENT, 
nonjoinder,  §  74. 
venue,  §  66. 

NONSUIT, 

costs  against  informer  on  penal  statute,  |  430. 
costs  for  defendant,  §  435. 
law  action,  §  573. 

NORTH  CAROLINA, 

copies  of  clerk's  new  records  as  evidence,  §  306. 

districts,  terms  and  places  of  holding  court  in.  §  98,  Jud.  Code.  Appendix. 

NORTH   DAKOTA,   districts,  terms  and   places   of  holding  court,  §  99,   Jud. 
Code,  Appendix. 

NOTARY  PUBLIC,  verification  of  pleadings  before,  Eq.  B.  36,  §  700. 

NOTICE, 

amendment  of  answer,  Eq.  R.  30,  §  964. 
circuit  court  of  appeals, 

Rule  38  C.  C.  A.  (8th  Circuit)    Appendix, 
commissioner,  depositions  before,  §  391. 

defendant  to  take,  of  certain  decrees,  Eq.  B.  8,  55  473,  1112,  1140,  1143. 
defensive  pleading  in  equity,  5  821. 
depositions  before  commissioner,  5  391. 

de  ben*  esse,  5  377. 

examiner,  §  391. 

master,  5  391. 
equity  suits,  5  825. 

orders  in, 5  825. 

examiner,  depositions  before,  §  391. 

filing  of  statement  of  evidence  on  appeal,  Eq.  B.  75,  5,1671. 
garnishment,  5  507. 

habeas  corpus,  service  on  state  attorney  general,  5  1342. 
injunction  against  enforcement  of  state  laws,  5  1110. 
interlocutory  orders,  etc.,  Eq.  R.  6,  5  822. 

interrogatories,  objecting  to,  5  952. 

master  in  chancery,  depositions  before,  9  391. 

motions,  Eq.  R.  6,  §  82. 

motion  to   strike   out,  §  1000. 

no  preliminary  injunction  granted  without,  Eq.  B.   73,51103. 

of  motion  to  dismiss,  Eq.  R.  29,  5§  880,  900. 


1158  INDEX. 

NOTICE  (Continued). 

of  orders,  Eq.  R.  4,    §  825. 

orders,  interlocutory,  Eq.  R.  6,  §  825. 

orders,  equity,  §  958. 

order  without  prior,  to  be  mailed  by  clerk  to  party,  etc.,  Eq.  R.  4,  §  825. 

reasonable,  of  amendment  of  answer,  by  leave,  etc.,  Eq.  R.  30,  §  964. 

reasonable  of  filing  supplemental  pleading,  Eq.  R.  34,  ch.  32. 

reasonable,  of  motion  to  enforce  answers,  etc.,  Eq.  R.  58,  §§  670,  940. 

reference  to  master  in  chancery,  §  1062.  ^ 

removal  of  causes,  classes  1,  2,  3,  §  198. 

statement  of  evidence  on  appeal,  Eq.  R.  75,  §  1671. 

taking  testimony  before  examiner,  etc.,  counsel  to  give,  Eq.  R.  53,  §  391. 

temporary  restraining  order,  §  1103. 

to  be  given  to  parties  to  be  substituted,  Eq.  R.  45,  §  763. 

to  parties  or  solicitors  of  proceedings  before  master,  Eq.  R.  60,  §  1062. 

to  produce  books  or  papers,  §  572. 

NUMBER, 

district    court's   in   the    several    states,    sec   Districts,    ch.    5,    Jud.    Code, 

Appendix, 
judges  in  the  several  districts,  9  20. 


o. 

OATH, 

§  574.  See    also    Verification, 
administration   of,  §  359. 
clerk,  §  28. 

court's  power  to  administer,  §  1116. 
deputy  marshals,  §  30. 
district  attorneys,  f  33. 

interrogatories,  answers,  Eq.  R.  58,  5§  670,  940. 
marshal  districjt  court,  §  29. 

'  may  be  made  by  plaintiff  if  special  relief  asked,  Eq.  R.  25,  §  700. 
officers  empowered  to  administer,  §  359. 
petition  for  rehearing  to  be  verified  by,  Eq.  R.  69,  §  1160. 
stockholder's  bill  to  be  verified  by,  Eq.  R.  27,  eh.  29. 

OBJECTIONS,  see    also    Exceptions,  §  1071. 
answer  in  equity  to,  §  968. 
decree,  draft  of,  §  1142. 
depositions,  equity  rule  as  to,  |  381. 
evidence,  Rule   12  C.   C.   A.   Appendix, 
interrogatories,  Eq.  B.   58,  §§  670,  940. 


INDEX.  1159 

OBJECTIONS  (Continued). 

tardy/ to  defect  of  parties,  Eq.  E.  44,  §§  724,  824. 

to  be  noted   by  examiner,  etc.,  Eq.  R.  51,  §  381. 

to  defect  of  parties,  Eq.  R.  43,  §{  762,  824. 

to  evidence  taken  before  examiner,  provisions  as  to,  Eq.  R.  51.  §  381. 

OBSTRUCTIONS,  in  rivers,  harbors  and  canals,  jurisdiction  of  district  court 
over,  §  102. 

OFFENSES, 

see  also  Crimes  and  Offenses, 
extradition,  none  for  political,  1 1302. 
prosecution,  method  of,  §  1360. 
statutes  of  limitations,  §§  231,  237. 
venue,  §  75. 

OFFICERS,  see  also  Judicial  Officers. 

aliens,  against  federal,  removal  of  causes.  §  206. 

authorized  to  hold  to  security  of  the  peace  and  good  behavior,  §  1262. 

before  whom  pleadings  verified,  Eq.  R.  36,  §  700. 

certiorari,  removal  of  cases  against  congressional  or  revenue,  §  212. 

circuit  court  of  appeals,  Rule  6  C.  C.  A.  Appendix,  §  1471. 

congressional,  removal  of  causes  against,  §  209. 

court  of  claims,  §  1430. 

depositions,   de   bene  esse,  before  whom  taken,  §  376. 

district  court,  eh.  2. 

executions  do  not  issue  against  revenue,  when,  9  632. 

executions  do  not  issue  against,  when,  §  632. 

removal  of  causes  against,  §  209. 
federal,  see  that  heading. 
habeas   corpus   in   suits  against,  9  212. 
judicial,  see  Judicial  Officers, 
oaths,  administering,  9  359.  -- 
question  arises  in  suit  involving  federal,  {  121. 
removal  of  causes  against,  §  206  et  seq. 
revenue,  see  Revenue  Officers, 
witnesses,  not  disqualified  as  in  suits  for  fines,  penalties,  or  forfeitures, 

1334. 
witness  fees,  court  officer  not  entitled  to,  §  419. 

OFFICIAL  PAPERS,  copies  of  lost  or  destroyed,  as  evidence,  9  284. 

OHIO,  districts,   terms   and   places  of   holding  court   in,  9  100,  Jud.   Code, 
Appendix. 

OKLAHOMA,  districts,  terms  and  places  of  holding  court.  5  101,  Jud.  Codo, 
Appendix. 


1160  INDEX. 

OLD  RULES  ABROGATED,  Eq.  R.  81,  Appendix. 

OMISSIONS, 

correction  of,  in  record  on  appeal,  Eq.  R.  76,  §  1671. 

in  transcript  on  appeal — correction  of,  Eq.  R.  76,  §  1671. 

of  portions  of  record  on  appeal,  Eq.  R.  75,  §  167JU 

OPINIONS, 

circuit  court  of  appeals. 

Rule  28  C.  C.  A.  Appendix. 
Rule  25  C.  C.  A.  (6th  Circuit)   Appendix. 
Rule  2&  C.  C.  A.  (3d  and  7th  Circuits)  Appendix, 
transcript  in,  on  appeal  or  error,  §  1669a. 

ORAL  ARGUMENTS,  see  Arguments. 

ORDER,  see    also   Judgments,  Decree,  Injunction,  Pleading, 
against  person  not  party,  how  enforced,  Eq.  R.  11,  §  795. 
appellate  court,  Eq.  R.  46,  §  1043. 
award  of,  by  judge  at  chambers,  etc.,  Eq.  R.  1,  §  822. 
chambers,  Eq.  R.  1,  §  822      . 
defensive  pleading  at  law,  §  541. 
enforcement  of,  differences  law  and  equity,  §  6. 
filed  with  clerk  to  be  noted  in  equity  docket,  Eq.  R.  3,  Appendix, 
for  delivery  of  possession,  writ  of  assistance  on  refusal  to  obey,  Eq.  R 

9,  §  1143. 

form,  injunction,  §  1122. 
form  of  master's,  on  accounting,  §  1062. 
grantable  of    course,  received    and    disposed    of    by  clerk,  Eq.   R.  2, 

Appendix. 

in  favor  of  person  not  party,  how  enforced,  Eq.  R.  11,  §  795. 
interlocutory,  making  and  directing,  Eq.  R.  1,  §  822. 
interlocutory,  notice  of,  Eq.  R.  6,  §  822. 
interlocutory,  time  for  appeal  from,  §§  1502,  1654. 
justice   or   judge   may   make   order   suspending,   etc.,   injunctions   pending 

appeal,  Eq.  R.  74,  §§  1107,  1667. 
made  or  passed  by  clerk,  or  judge  in  chambers,  to  be  entered  in  order 

book,  Eq.  R.  3,  Appendix. 

made  without  notice  to  be  mailed  by  clerk,  Eq.  R.  4,  §  825. 
mandatory,  contempt  for  noneompliance,  Eq.   R.   8,  §§  473,   1112,   1140, 

1143. 
mandatory,  for  specific  performance,  provision  as  to,  Eq.  R.  8,  §§  473, 

1112,  1140,  1143. 

master's,  in  accounting,  form  of,  §  1062. 
notice  of,  in  equity,  §  825. 

noting  of,  in  equity  docket  or  entered  in  order  book,  not  notice  to  par- 
ties, Eq.  R.  4,  §  825. 


INDEX.  11G1 

ORDER  (Continued). 

of  court  to  be  entered  in  equity  journal,  Eq.  R.  3,  Appendix. 

preliminary  injunction,  see  Restraining  Order. 

process  to  issue  to  compel  obedience  to,  Eq.  R.  7,  5  1112. 

temporary  restraining,  and   preliminary  injunctions,   Eq.   R.   73,  §  1103 

et  seq. 

that  bill  be  taken  pro  confesso  on  default,  Eq.  R.  16,  9  81L 
when  may  be  made,  Eq.  R.  1,  f  822. 

ORDER  BOOK, 

clerk  to  keep,  Eq.  R.  3,  Appendix, 
entry  of  order  in,  not  notice,  Eq.  R.  4,  §  825. 
index  of,  clerk  to  keep,  Eq.  R.  3,  Appendix. 

to  contain  all  orders  made  or  passed  by  judge  in  chambers  or  by  clerk, 
Eq.  R.  3,  Appendix. 

OREGON,   districts,   terms  and  places  of  holding   court,  i  102,  Jud.   Code, 
Appendix. 

ORGANIZATION, 

circuit  court  of  appeals,  ch.  70. 

court  of  claims,  §  1430. 

court  of  customs  appeals,  §  1452. 

district  court,  chs.  2  and  3. 

districts,  §  50. 

federal  courts  enumerated,  9  4. 

Supreme  Court,  ch.  72. 

ORIGINAL  JURISDICTION, 
see  Jurisdiction, 
district  court,  §  99. 
diverse  citizenship,  ch.  7. 
federal  question  as  a  ground  of,  9  125, 
insurance  companies,  9  95. 
jurisdiction,  9  95. 
removal,  ch.  9. 
Supreme  Court,  9  1534, 


1162  INDEX. 


P. 

PAMPHLET  COPIES,  of  statutes  and  bound  copies  of  acts,  as  evidence, 
§278. 

PAPERS  AND  ORDERS  filed  with  clerk,  etc.,  to  be  noted  in  equity  docket, 
Eq.  R.  3,  Appendix. 

PAPERS, 

deposition  under  commission,  production  of,  §  387. 
motion  and  notice  to  produce,  §  572. 
production  of  before  master,  Eq.  R.  62,  §  1063. 
production  of,  on  deposition  under  commission,  §  387. 

PARDON,  President's  power,  §  1406. 
PARDON  AND  PAROLE,  ch.  67. 

PAROLE,  ch.  67. 

of  prisoners,  §  1407. 

PART,  of  defendants  not  found,  venue,  §  74. 

PARTICULARS,  see  Bill  of  Particulars,  §  922. 
bill  of  under  rule  20,  §  920. 
may  be  ordered,  Eq.  R.  20,  ch.  41,  §§  812,  967. 
motion  for,  equity,  §  &20. 

PARTIES,  ch.  27. 

accounting  before  master,  how  to  bring  into  accounts,  Eq.  R.  63,  §  1063. 

administrator  as,  Eq.  R.  37,  §  710. 

allegations  as  to,  in  bill  in  equity,  §§  694,  697. 

ambassador  as,  in  Supreme  Court,  §  1534. 

amending,  §  762. 

amendment  of  bill  for  defect  in,  Eq.  R.  43,  §  762. 

amendments  on  substitution  of,  Eq.  R.  45,  §  763. 

answer  setting  up  defect  in,  proceedings  on,  Eq.  R.  43,  §  824. 

appeal,  on,  §  1651. 

banks,  national,  diverse  citizenship  of,  §  147. 

beneficiaries  as,  §  710. 

bill  in  equity, 

allegations  of  residence  and  citizenship  of,  §§  69*.  697,  710. 
citizens  District  of  Columbia  not  included  in  term  "diverse  citizenship," 

§142. 
citizens  as,  in  Supreme  Court,  §  1534. 


INDEX.  1163 

PARTIES  (Continued). 

citizenship,  name  and  residence  of  each  must  be  stated  in  bill,  Eq.  B.  25, 

9694. 
clerk  to  send  copies  of  interrogatories  to,  if  there  be  no  record  uolicitor, 

Eq.  B.  58,  Si  670,  940. 
consul  as,  in  Supreme  Court,  §  1534. 
continuance  for  death  of,  §  561. 
corporation,  diverse  citizenship  of,  §  144. 
counterclaim  not  to  bring  in  new,  §  984 
death  of,  reviror,  Eq.  R.  45,  §  763. 
defect  of,  resisting  objections,  Eq.  R.  43,  §§  762,  824. 
defect  of,  tardy  objections,  proceedings  on,  Eq.  R.  44,  §§  724,  824. 
disability  of,  to  be  stated  in  bill,  Eq.  R.  25,  §  694. 
District  of  Columbia  not  a  citizen,  §  142. 
diverse  citizenship,  §  157. 

domestics  of  ambassadors,  etc.,  as,  in  Supreme  Court,  §  1534. 
executors  and  administrators  as  parties,  §  710. 
failing  to  appear  before  master,  Eq.  R.  60,  §  1062. 
federal  officers  as,  raises  a  federal  question,  §  121. 
generally — intervention,  Eq.  B.  37,  §  730. 
guardian,  Eq.  R.  37,  §  710. 
guardians   ad   litem,  §  151. 

heir  as,  to  execute  trusts  of  will,  Eq.  B.  41,  §  722. 
in  case  of  joint  and  several  demands,  Eq.  B.  42,  §  723. 
infant,  Eq.  R.  40,  §  721. 
intervention,  Eq.  R.  37,  §  730. 
joinder  of,  Eq.  R.  37,  §  710. 

may  be  examined  on  oath  by  master,  Eq.  R.  62,  §  1063. 
name  to  be  stated  in  bill,  Eq.  B.  25,  §  694. 
new  parties  by  amendment,  §  762. 
nominal,  appearance  of,  Eq.  R.  40,  §  721. 
nominal — costs,  Eq.  B.  40,  §  721. 

notice  to,  of  proceedings  before  master,  Eq.  B.  60,  9  1062. 
noting  or  entry  of  order  not  notice  to,  Eq.  B.  4,  9  825. 
not  ready,  Rule  22  C.  C.  A.  Appendix. 

orders  enforced  in  favor  of  or  against  person  not  a,  Eq.  R.  11,  9  795. 
partnerships  as,  §  146. 
personal  representatives,  9  149. 
persons  not  made,  Eq.  R.  25,  9  694. 

process  in  equity  for  or  against  persona  not  partiRs,  9  795. 
procuring  reference  to  master,  payment  of  costs  by,  Eq.  R.  59,  9  1061. 
proper,  absence  of  persons  who  would  be,  Eq.  B.  39,  99  697,  719. 
proper  in  bill,  §  697. 
public  minister  a*,  in  Supreme  Court,  9  1534. 


1164  INDEX. 

PARTIES  (Continued). 

refusing  to  join  may  be  made  defendant,  Eq.  R.  37,  §  710. 

residence  to  be  stated  in  bill,  Eq.  R.  25,  §  694. 

representative  parties,  §§  149,  715. 

reviver,  Eq.  R.  45,  §  763. 

servants  of  ambassadors,  etc.,  as  in  Supreme  Court,  §  1534. 

shifting  to  create  diverse  citizenship,  §  157. 

state  as,  in  Supreme  Court,  §  1534. 

stockholders  as,  §  740. 

substitution,  notice  of,  Eq.  R.  45,  §  763. 

time  for  filing  exceptions  to  master's  report  by,  Eq.  R.  68,  §  1070. 

to  be  given  notice  of  preliminary  injunctions,  etc.,  Eq.  R.  73,  §§  822,  1103. 

to  examine  accounting  party  viva  voce  or  upon  interrogatory,  Eq.  R.  63, 

§  1063. 
to  give  notice  of  taking  of  testimony  before  examiner,  etc.,  Eq.  R.  53, 

§391. 

to  verify  petition  for  rehearing  by  oath,  Eq.  R.  69,  §  1160. 
territorial  citizens  not  included  in  term  "diverse  citizenship,"  §  142. 
trustee  ag,  Eq.  R.  37,  §  710. 
vice-consul  as,  in  Supreme  Court,  §  1534. 
when  order  made  in  absence  of,  clerk  to  mail  copy,  Eq.  R.  4,  §  825. 

PARTNERSHIP,  diverse  citizenship  of,  §  14C. 

PATENT  CASES, 

attendance  of  witnesses,  enforcing,  §  352. 

claim  for  unlicensed  use  by  government,  §  1432. 

costs  in  infringement   cases,  §  438. 

copies  foreign  letters  as  evidence,  §  301. 

cross-examination  of  witnesses,  Eq.  R.  48,  §§  1041,  1045. 

enforcing  attendance   and  testimony  of  witnesses  in  contested  eases, 

§352. 

expert  witnesses,  §§  l'041,  1045 
infringement,  tested  by  interrogatories,  §  950. 
statute  of  limitations,  infringements,  §  250. 
testimony,  enforcing  in  contested  eases,  §  352. . 
trading  with  the  enemy  act,  suits  under,  §§  1722,   1723. 
venue,  infringement  suits,  §  76. 
witnesses,  enforcing  attendance  and  testimony  of  witnesses  in  contested 

cases,  §  352. 

PATENT  OFFICE,  records,  letters,  patents,  etc.,  copies  as  evidence,  §  300. 
PATENTS,  INDIANS,  statutes  of  limitations,  §  247. 


INDEX.  1165 

PATENTS,  LAND,  statutes  of  limitations  to  vacate,  |  245. 
PATENTS,  RAILWAY,  statute  of  limitations,  §  248. 
PATENTS,   WAGON   ROAD,  statute  of  limitations,  5  40«. 

PAYMENT, 

amount  in  controversy,  effect  on,  §  177. 
money  into  court,  §  1712. 
same,  withdrawal  of,  §  1713. 

PEACE,  officers,  authorized  to  hold  to  security  of,  §  1262. 

PENAL  LAWS,  see  Criminal   Procedure,  chs.  59-62. 

venue  of  prosecutions  for  injuries  to  fortifications,  §  83. 
intoxicating  liquors — prosecutions,  venue,  §  84. 

PENAL  STATUTE, 

costs  against  informer  on  nonsuit  or  discontinuance,  9  436. 
costs  of  defendant,  9  435. 

PENALTIES, 

bail  in  suit  for,  §  1273. 

customs  revenue  laws,  statutes  of  limitations,  §  239. 

federal  laws,  statutes  of  limitations,  §  238. 

special  bail  in  suit  for,  §  1273. 

venue,  §  76. 

witnesses,  officers  and  informers  not  disqualified  in  suits  for,  §  334. 

PENALTY,  excluding  jurors  contrary  to  civil  rights  acts,  §  588. 

PENNSYLVANIA,  districts,  terms  and  places  of  holding  court,  §  103,  Jud. 
Code,  Appendix. 

PEREMPTORY  CHALLENGES, 
criminal  cases,  §  1366. 
excessive,  in  criminal  cases  disregarded,  9  1367. 

PERJURY, 

indictment  for,  9  1240. 

subornation  of,  indictment  for,  9  1241. 

witness,  does  not  disqualify,  9  332. 

PERPETUAL   INJUNCTION,    form   of,  91122. 


1166  INDEX. 

PERPETUATION    OF    TESTIMONY,  deposition*    under  state  laws,  when 
admissible,  §  388. 

PERSONAL  PROPERTY,  execution,  appraisal  on,  §  644. 
PERSONAL  REPRESENTATIVE,  diverse  citizenship  of,  §  149. 

PERSON,  see    also    Persons,  below. 

appointed  to  serve  process  to  make  affidavit  thereof,  Eq.  R.  15,  §  796. 
making  claim  before  master  examinable  by  him,  Eq.  R.  65,  §  1063. 
non  compos,  nothing  to  be  taken  against  as  confessed,  Eq   R.  30,  §  964. 

PERSONS, 

joining  as  parties,  Eq.  R.  37,  §  710. 

not  parties,  process  in  equity  in  behalf  or  against,  §  795. 

not  made  parties  to  bill,  E'q.  R.  25,  §  694. 

not  parties,  process  on  behalf  of  and  against,  Eq.  R.  11,  §  795. 

producing,    habeas   corpus,  §  1338. 

who  would  be  proper  parties,  absence  of,  Eq.  R.  39,  §§  697,  719. 

PETITION, 

see  also  Forma,  subheading  Petitions. 

court  of  claims,  §  1434. 

same,  insufficient,  §  1434. 

rehearing,  for  newly  discovered  evidence,  §§1162,   1163. 

to  revise  in  bankruptcy,  circuit  court  of  appeals. 

Rule  34  C.  C.  A.   (6th  Circuit)     Appendix. 

Rule  36  C.  C.  A.   (1st,  4th,  and   8th  Circuits)     Appendix. 

Rule  37  C.  C.  A.   (8th  Circuit)    Appendix. 

Rule  38  C.  C.  A.  (2d  and  4th  Circuits)    Appendix. 

PETITION  FOR  REHEARING,  Eq.  R.  69,  §  1160. 

PETIT  JURIES, 

see  also  Juries.  ,  .- 

talesmen  for,  §  591. 

PHILIPPINE  ISLANDS, 

appeal  and  error  to  Supreme  Court,  §  1561. 
procedure  on  appeal  from  Supreme  Court  of,  §  1681. 
trading  with  the  enemy  act,  §  1720. 

PHYSICAL  EXHIBITS, 
circuit  court  of  appeals, 

Rule  30  C.  C.  A.  (6th  Circuit)    Appendix. 


INDEX.  1167 

PILLORY,  abolished,  §  1405. 

PLACES, 

criminal  law  of  the  United  States  applicable,  9  120L 

executions  run  where,  §  635. 

execution,  sale  of  real  estate,  §  640. 

for  holding    district    court    in    the   various    states,  ch.   5,  Jud.  Code 

Appendix. 

see  also  Districts, 
jury,  from  where  drawn,  §  588. 

PLAINTIFF, 

answer  to  interrogatories,  motion  to  dismiss  on,  §  890. 

dismissal  by,  §  1130. 

entitled  to  subpoena  as  of  course  when  bill  filed.  Eq.  R.  12,  §  791. 

time  within  which  to  take  deposition  for,  Eq.  B.  47,  ch.  48. 

voluntary   dismissal  by,  §§  1130,   1131. 

PLEA, 

answer   as,  ch.   40,  §  903. 

answer  as,  dismissal  of  bill,  §  904. 

answer  as,  issue  raised  by,  §§  902,  903. 

answer  as,  separate  hearing,  §  901. 

in  bar,  defenses,  formerly  presentable  by,  to  be  made  in  answer,  Eq.  R. 

29,  §  900. 

not  guilty,  standing  mute,  §  1362. 
of  res  adjudicata  as  raising  a  federal  question,  9  131. 

PLEA  IN  ABATEMENT,  appeal  and  error,  no  reversal  for  error  in,  ruling 
on,  except  to  jurisdiction,  9  1686. 

PLEA -IN  BAR,  motion  to  dismiss  does  not  include  all  such,  9  883. 

PLEADING, 

see  also  Procedure  and  under  headings  of  various  lunds  of  pleadings, 
alteration  in,  on  transfer  of  action  at  law  erroneously  begun  as  suit  in 

equity,  Eq.  R.  22,  ch.  37,  9  472. 
amended,  Eq.  R.  19  (9  760),  28,  29,  43,  45. 
amendment  of  on  substitution  of  parties,  Eq.  R.  45.  §  763. 
amendment  to  set  forth  material  supplemental  matter,  Eq.  R.  19,  9  760. 
amendments,  ch.  31. 

answer  in  equity,  §  96$. 

bill  in  equity,  9  760. 

defensive,  at  law,  §  678. 
amount  in  controversy,  §  175. 


1168  INDEX.  / 

PLEADING   (Continued). 

answer,  Eq.  B.  29,  30,  §  900. 

answer  as  a  plea,  ch.  40. 

answer  at  law,  see  Defensive  Pleading  at  Law,  ch.  19. 

answer  in  equity,  §  964. 

is  not  evidence,  §  962. 
better  statement,  motion  for,  ch.  41. 
bill,  amendment  as  of  course1,  Eq.  B.  28  ch.  31. 
bill  in  equity,  see  that  heading,  ch.  26,  §  692. 

differences  federal  and  state,  §  691. 
bill  of  review,  ch.  58,  §  U80. 
bill,  stockholders,  ch.  29. 
caption  of  equity  bill,  §  693. 
cause  of  action,  equity,  §  696. 
certainty,  motion  for  in  equity,  §§  920,  967. 
citizenship  of  parties,  equity,  §  694. 
complaint  (see  Initial  Pleading)  at  law,  ch.  16. 
complaint,  equity,  differences  federal  and  state,  §  691. 
confession  and  avoidance  no  reply  to,  required,  §  1011. 
conformity,  at  law  to  state  law,  ch.  15. 
conformity,  defensive  at  law  to  state  law,  eh.  19. 
contents  bill  in  equity,  §  692. 
counterclaim,  equity,  see  that  heading,  §  980. 
counterclaim,  Eq.  B.  30,  §  980. 

court  may  permit  any,  to  be  amended,  Eq.  B.  19,  §  760. 
cross-bill  matter  set  up  in  counterclaim,  Eq.  B.  30,  §  980. 
decree  pro  confesso,  ch.  35. 

to  save  from,  §  S'12. 
decree  equity,  ch.  56. 
default  at  law,  §  542. 
default  in  equity  to  save  from,  §  812. 
defense,  answer  in  equity,  ch.  44. 
defense  by  motion  to  dismiss,  Eq.  B.  29,  §§  880,  900. 
defensive, 

answer,  chs.  40,  44. 

at  law,  ch.  19. 

motion  to  dismiss,  ch.  39. 

motion  to  strike  out,  ch.  48. 

reply,  ch.  47. 

time  for  in  equity,  §  810. 
deficiency,  Eq.  B.  10,  §  1140. 
definite,  motion  to  make,  equity,  §§  920,  967. 
demurrers  abolished,  matters  of  raised  by  motion  to  dismiss  or  in  answer, 

Eq.  B.   29,  §  900. 
differences  between  law  and  equity,  §  6. 


INDBX.  1169 

PLEADING    (Continued), 
differences   (continued). 

bill   in  equity   federal  and   state,  §  691. 

complaint  at  law,  federal  and  state,  §  470. 

federal  and  state  practice,  §  10. 
discovery  at  law,  §  571. 

answer  to  in  equity,  §  940. 
dismissal   by   plaintiff,  §  1130. 
dismiss,  motion  to,  ch.  39. 
effect  of  answer  in  equity,  §§  960,  962. 

counterclaim  or  setbff  in  equity,  §§  980,  982. 

failure  to  plead  counterclaim  or  setoff,  §  986. 
equity,  §  5,  ch.  25. 
equity    suit,    see    that    heading, 
equitable  defenses  law  actions,  §  545. 
evidence,  answer  in  equity  is  not,  §  962. 

exceptions  to  abolished,  Eq.  R.  21,  33,  ch.  42,  §§  812,  820,  968. 
federal  question,  where  must  appear,  §§  129,  130. 
filing  of,  eq.  R.  1,  §  6602. 

filing,  or  amendment  of,  on  substitution  of  parties,  Eq.  R.  45,  §  763. 
forms,  see  that  heading, 
forms  technical  abolished,  Eq.  R.  18,  §§  690,  960,  965. 

answer  in  equity,  §  960. 

bill  in  equity,  §  690. 

counterclaim  or  setoff  in  equity,  §  980. 
further  and  better  particulars  of  matters  stated  in  any  may  be  ordered, 

Eq.  R.  20,  ch.  41,  §§  812,  967. 
grounds  of  jurisdiction,  allegations  of,  in  bill,  §  695. 

see  also  heading  Grounds  of  Jurisdiction. 
»  hearing  on  bill  and  answer,  §  969. 

impertinent  matter  in  answer  in  equity,  motion  to  strike,  §5  930,  967. 
independent  suit  in  equity  in  counterclaim,  9  981. 
initial,  see  Initial  Pleading. 

pleading  at  law  (ch.  16),  in  equity  (ch.  26). 

federal  question  must  show  in,  §§  129,  130. 
interrogatories  not  a  part  of,  §  942. 
intervention,  ch.  28. 

irrelevant  matter,  motion  to  strike  in  equity,  §§  930,  968. 
issue  in  equity,  see  heading  Issue,  §  1010. 
joinder  of  causes,  Eq.  R.  26,  ch.  26. 
joinder   of   parties,   Eq.   R.   37,  5  710. 
jurisdiction,  ground  of,  see  heading  Jurisdiction,  5  695. 
law   actions,  §  5,   ch.    15. 
manner  of  defensive,  at  law,  §  544. 

master's  report  refers  to  but  does  not  copy,  Eq.  R.  61,  9  1070. 
Manual— 74 


1170  INDEX. 

misjoinder,  Eq.  B.  29,  §§  880,  900. 
PLEADING    (Continued). 

motion  to  dismiss,  ch.  39,  Eq.  B.  29,  §§  880,  900. 

motion  to  dismiss  admits  allegations  of  bill  well  pleaded,  §  882. 

motion  to  strike  out,  ch.  46. 

motion  to  strike  out  to  test  sufficiency  of  answer  or  counterclaim,  Eq.  B. 

33,  ch.  46,  §  968. 

misjoinder,  Eq.  B.  29,  §§  880,  900. 
motions,  see  that  heading, 
newly  discovered  evidence,  rehearing  for,  §  1162. 
objections  to  answer  in  equity,  §  968. 
officers  before  whom  verified,  Eq.  B.  36,  §  700. 
order  defensive  at  law,  §  541. 
parties,  ch.  27. 
parties,  see  that  heading. 

allegations  as  to  in  bill  in  equity,  §§  694,  697. 

citizenship,  allegation  of,  in  bill,  §  694. 

proper,  allegation  of,  in  bill,  §  697. 

residence,  allegation  of,  in  bill,  §  694. 
pleas  abolished,  matter  set  up  in  answer,  Eq.  B.  29,  §  900. 
prayer  of  bill  in  equity,  §  698. 
proper  parties,  allegations  in  bill  in  equity,  §  697. 
redundant  matter,  motion  to  strike  (equity),  §§  930,  968. 
rehearing,  ch.  57. 
removal  of  causes,  ch.  9. 
reply,  Eq.  B.  31,  ch.  47. 

reply  to  counterclaim  or  setoff  in  equity,  §§  3010,  1011. 
residence  of  parties,  allegation  of,  in  bill,  §  694. 

revivor,  Eq.  B.  45,  §  763,  ch.  33.  ^  * 

scandal,  motion  to  strike  (equity),  §§  930,  967. 
scandalous  matter,  signature  of  counsel  that  none  inserted  in,  Eq.  B.  24, 

§699. 

scandalous  matter  to  be  stricken  out,  Eq.  B.  21,  ch.  42,  §§  812,  820,  968. 
scope  defensive,  at  law,  §  544. 
setoff,  Eq.  B.  31,  ch.  47. 

setoff,  see  Counterclaim  in  Equity,  §§  980,  981. 
signed  by  solicitors,  Eq.  B.  24,  §  699. 
state  practice, 

bill  in  equity,  differences  federal  and  state,  §  691. 

complaint  at  law,  differences  federal  and  state,  §  470. 

differences,  federal  and  state  practice,  §  10. 
statement  of  cause  of  action  in  bill  in  equity,  §  696. 
stockholder's  suit,  ch.  29. 
sufficiency  defensive  at  law,  §  544. 


INDEX.  1171 

PLEADING  (Continued). 

supplemental,  Eq.  R.  32,  34,  35,  §  962;  see  also  ch.  38. 
supplemental  answer  in  equity,  9  966. 
technical  forms  abrogated,  Eq.  R.  18,  §§  690,  960,  965. 
time  for  answer  in  equity  (see  beading  Time),  9  963. 

counterclaim  in  equity,  §  963. 

defensive,  at  law,  §  541. 

reply  to  counterclain  in  equity,  §  1010.  • 

setoff  in  equity,  §  963. 
rerification  before  whom,  Eq.  R.  36,  §  700. 

PLEADINGS,  see  Pleading,  above. 

PLEAS  ABOLISHED,  answer  now  makes,  Eq.  R.  29,  5  900. 

POLITICAL  OFFENSE,  extradition  not  allowed,  §  1302. 

POLYGAMY,  challenges  in  prosecution  for,  §  1368. 

POOR  PERSONS,  see  Indigent  Parties,  Proceedings  in  Forma  Pauperit. 

PORTO  RICO,  §  1509. 

appeal  and  error  to  Supreme  Court,  §  1561. 

procedure,  appeal  from  supreme  and  district  court's  of,  §  1680. 

POSSESSION, 

decree  for,  writ  of  assistance,  Eq.  R.  9,  §  1143. 

equity  suit,  recoverable  in,  §  861. 

to  enforce,  Eq.  R.  7,  §  1112. 

writ  of  assistance  for,  by  clerk  to  issue,  Eq.  R.  9,  9  1143. 

POSSESSORY  ACTION,  mining  titles,  government  title  does  not  affect,  9  310. 

POSTAL  LAWS, 

continuance  in  suits  under,  9  564. 

credits  in  suits,  9  1710. 

interest  in  suits,  9  1711. 

intoxicating  liquors,  venue,  9  84. 

letters,  seizure  of,  9  1716. 

same,  disposition  of  seizures,  9  1717. 

POSTAL  SUITS, 

attachment,  99  495,  503. 
garnishment,  9  501. 

POSTOFFICE, 

copies  of  department  demand  en  postmasters  as  evidence,  }  2M. 
records,  copies  as  evidence,  9  295. 


1172  INDEX. 

POWERS  OP  MASTEE,  Eq.  E.  62,  §  1063. 

PRACTICE, 

see  Procedure. 

admission  to  district  court,  §  56. 

additional  rules  for,  by  district  court,  Eq.  E.  79,  §§8,  58. 

circuit  court  of  appeals,  Eule  8  C.  C.  A.  Appendix. 

court  of  claims,  disqualification  for,  §  1430. 

rules  of,  §  1434. 
differences  in  law  and  equity,  §  6. 

federal  and  state,  §  10. 
equity  suits — rules  of,  §  57. 
equity,  summary,  ch.  25. 
law  actions — rules  of,  §  57. 
law  summary,  ch.  15. 
rules  of,  §  57. 

i 
PBAYEE, 

for  special  relief  to  be  stated  in  bill,  Eq.  R.  25,  §  698. 
interrogatories  not  covered  by,  in  bill,  §  943. 

PRECEDENCE   given   to   hearing   in   cases   of   temporary    restraining   orders, 
Eq.  B.  73,  §  1104. 

PEECIPE, 

filing  indicating  portions  of  record  on  appeal,  Eq.  E.  75,  §  1671. 
process  in  equity,  for,  §  792. 
subpoena  im  equity,  §  661. 

PEEJUDICE, 

district  judge,  designation  of  another  judge  of  affidavit  filed,  §  25. 
removal  of  causes  for,  §§  191,  200. 

unless  material,  will  result  appellate  court  not  to  reverse  decree,  Eq.  E.  46, 
§  1043. 

PEEL1MINAEY  INJUNCTIONS, 

see  Restraining  Order  and  Injunctions. 

and  temporary  restraining  orders,  Eq.  E.  73,  §  1103  et  seq. 

PREPAEATION, 

record  on  appeal  or  error,  §  1670. 

PREPAEATION  AND  EEDUCTION  OF  BECOBD  ON  APPEAL,  Eq.  E.  75, 

§  1671. 
costs — corrections  of  omissions,  Eq.  E.  76,  §  1671. 


INDEX.  1173 

PRESENTATION  of  defense,  Eq.  B.  29,  §  900. 

PRESERVATION  OF  LIEN, 

upon  transfer  or  creation  of  new  district,  venue,  5  70. 

PRESUMPTION,  master's  conclusions  of  fact,  correct,  §  1073. 

PRINTED, 

and  bound  copies  of  acts  as  evidence,  §  279. 

copies  of  patent,  specifications  and  drawings  as  evidence,  §  302. 

PRINTER'S  FEES,  folio  defined,  §§  427,  428. 

PRINTING, 

appeal  record,  circuit  court  of  appeals,  §  1671. 

Rule  19  C.  C.  A.   (6th  Circuit)  Appendix. 

Rule  23  C.  C.  A.  Appendix. 

Rule  40  C.  C.  A.  (8th  Circuit)  Appendix. 
Addenda  Rule  45  C.  C.  A.  §  1673. 

PRINTS,  trading  with  the  enemy  act,  suits  under,  §8  1722,  1728. 

PRIORITIES, 

attachments,  §  491. 

revenue  cases,  §  1702. 

state  a  party,  cases  where,  §  1703. 

PRISONER, 

arrest  of,  ch.  62. 

bail  of,  ch.  62. 

see  that  subhead  under  heading  Criminal  Procedure. 

custody, 

circuit  court  of  appeals,  Rule  33  C.  C.  A.  Appendix. 

Rule  31  C.  C.  A.  (3d  and  7th  Circuits)   Appendix 

Rule  32  C.  C.  A.  (6th  Circuit)  Appendix, 
extradition,  see  that  heading,  ch.  63. 

PRISONERS, 

pardon  and  parole,  ch.  67. 

PRIVILEGE,  removal  by  writ  of  error,  state  court,  decision  against,  9  1607. 
PRIVILEGES  AND  IMMUNITIES,  §  124, 

PRIZE  CASES, 

appeals  to  Supreme  Court,  §  1554. 
witness  fees,  how  paid,  §  424. 


1174  INDEX. 

PKOBATE  JURISDICTION,  executors  and  administrators  are  parties,  §  710. 

PROCEDENDO, 

Rule  44  C.  C.  A.  (8th  Circuit)  Appendix 

PROCEDURE, 

after  removal,  §§  199,  217. 

aliens,  suits  against  federal  officers,  on  removal,  §  209. 

appeal,  see  that  heading,  eh.  75. 

appellate,  see  Appeal  and  Error,  eh.  75. 

appellate  court  after  transcript  filed,  §  1686. 

bias,  on  removal  for,  §§  200,  203. 

blended — a  possibility,  §  9. 

C.  C.  A.  rules,  §  1473,  set  out  in  full  in  Appendix,  p.  845  et  seq. 

Civil  Rights  Cases,  on  removal  of,  §§  207,  208. 

condemnation  food  products  and  fuel,  §  1725. 

congressional  officers,  on  removal  of  suits  against,  §§  210,  211,  212  et  scq. 

custom  law  seizure  cases,  §  1706. 

differences  between  law  and  equity,  §  6. 

federal  and  state,  §  10. 

diverse  citizenship,  removal  of  causes,  §  195  et  seq. 
equity,  see  Equity  Suit,  chs.  25,  28,  §55,  8. 
federal  officers,  aliens  against,  removal,  §  206. 

congressional,  removal  of  suits  against,  §§  305  et  seq. 

revenue,  removal  of  suits  against,  §  210  et  seq. 
federal  question,  removal  of  causes,  §  195  et  seq. 
food  products  and   fuel,  condemnation,  §  1725. 
injunction  on  distress  warrant  against  officer  for  failure  to  account   for 

public  money,  §§  1119,  1120. 
land  grant  cases  on. removal,  §  205. 
law,  see  Law  Actions,  chs.  15,  24,  §  5. 
libel,   food   products  and   fuel,  §  1725. 
maritime  liens,  §  1715. 
officers,  aliens  against,  removal,  §  206. 

congressional,  removal  of  suits  against,  §  210  et  seq. 

revenue,  removal  of  suits  against,  §  210  et  seq. 
prejudice,  on  removal  for,  §  200  et  seq. 
remanding  cases  removed,  see  Remand, 
removal  of  causes,  ch.  9. 

removal  by  writ  of  error  to  state  court,  ch.  74,  §  1609. 
revenue  officers,  removal  of  suits  against,  §  210  et  seq. 
separable  controversy,  removal  of,  §  195  et  seq. 
state  court,  removal  by  writ  of  error  from,  §  1609. 
study  of,  §  11. 
temporary  restraining  order  when  granted  without  motice,  §  1104. 


INDEX.  H75 

PROCEDURE  (Continued). 

writ  of  errof,  see  that  heading. 

district  court  to  circuit  court  »f  appeals,  9  1657* 
•forma,  pauperis,  §  1668. 
state  court,  to,  §  1609. 
summary,  §  1676. 
territories  to,  §§  1679-1685. 

PROCEEDINGS, 

after  decree  pro  confesso,  Eq.  R.  16,  §  811. 

error  or  defect  in  to  be  disregarded  when  not  affecting  substantial  rights, 

Eq.  R.  19,  9  760. 
equity,  summary,  ch.  25. 
forma  pauperis, 

C.  C.  A.  Rule  17  (6th  Circuit)  Appendix, 
law  summary,  ch.  15. 
venue  of,  ch.  4. 
venue  of  prosecutions,  §  78. 

PROCEEDINGS  BEFORE  MASTER, 
powers  in,  Eq.  R.  62,  §  1063. 
speeding  of,  Eq.  R.  60,  §  1062. 

PROCESS, 

additional  rules  as  to,  by  district  court,  Eq.  R.  79,  §  58. 

affidavit  of  service,  Eq.  R.  15,  §  796. 

alias  subpoena,  equity,  §  794. 

amendment  at  law,  §  623. 

amendment  of  Eq.  R.  19,  §  760. 

answer  required  by  subpoena,  Eq.  R.  7,  §  790. 

attachment  to  compel  obedience,  Eq.  R.  7,  8.  §  1112. 

award  of,  by  judge  at  chambers,  etc.,  Eq.  R.  1,  §  822» 

by  whom  served,  Eq.  R.  15,  9  796. 

chambers,  Eq.  R.  1,  9  822. 

circuit  court  of  appeals,  9  1473. 

Rule  9  C.  C.  A.  Appendix. 

Rule  8,  6th  Circuit  under  Rule  9  C.  C.  A.  Appendix, 
court  may  permit  any  process  to  be  amended,  Eq.  R.  19,  9  760. 
defendant  in  different  district  same  state,  9  64. 
equity  suits,  ch.  34. 

execution  writ  for  money,  Eq.  R.  8,  10,  §9  473,  1112,  1140,  1143. 
final,  Eq.  R.  1,  9  822. 
for  or  against  persons  not  parties,  9  795. 

for  taking  bills  pro  confesso  grantable  of  course  by  clerk,  Eq.  R.  5,  9  823. 
form,  equity,  99  791,  799. 

forma  pavperis  suits,  9  528. 

law  conform  to  state  laws,  exceptions.  9  522. 


1176  INDEX. 

PEOCESS   (Continued). 

of  return,  equity,  §§  798,  799.  * 

in  behalf  of  and  against  person  not  parties,  Eq.  R.  11,  §  795. 
issuance  of  equity,  §  791. 
issued    and    returns    thereon   to    be    noted    in    equity    docket,    Eq.    R.    3, 

Appendix. 

issuing  and  return  of,  Eq.  R.  1,  §  822. 
judge  at  office  of  clerk,  Eq.  R.  1,  §  822. 

may  be  served  by  person  appointed  therefor,  Eq.  R.  15,  §  796. 
mesne  and  final,  defined,  Eq.  R.  7,  §  790. 
mesne  and  final,  issuing  and  returning,  Eq.  R.  1,  §  822. 
mesne  and  final  to  be  served  by  marshal,  deputy,  etc.,  Eq.  R.  15,  §  796. 
mesne,  in  equity,  the  subpoena,  §  790. 
mesne   or  final,   to   enforce  and   execute  decrees  grantable   of   course   by 

clerk,  Eq.  R.  5,  §  823. 
manner  of  service,  §§  525,  797. 
motion  for,  grantable  by  clerk,  Eq.  R.  5,  §  8'23.   * 
orders  enforcing,  Eq.  R.  7,  §  1112. 
prayer  for,  none  required,  §  698. 
previpe  for,  in  equity,  §  792. 
publication  of,  §§  66,  526.  , 

return  of,  in  equity,  §  791.     , 

form,  §§  798,  799. 

time  for,  §§  664,  791. 
service  of,  by  whom  made,  §§  524,  796,  see  Service  of  Process;  Subpoena. 

by  publication,  §§  66,  526. 

manner  of,  §§  525,  797. 

time  for,  §§  664,  791. 
sequestration  writ,  Eq.  R.  7,  8,  §  1112. 
special  appearance  to  quash,  §  527. 
subpoena  is,  Eq.  R.  7,  §  790. 
subpoena  is  mesne,  Eq.  R.  7,  §  790. 
summons  in  equity  is  the  subpoena,  §  790. 
time  for  return,  §§  664,  791. 
venue,  subject  matter  in  two  districts,  §  63. 
witnesses  in  criminal  cases,  §  339. 

see  also  Subpoena, 
writ  of  assistance,  Eq.  R.  7,  9,  §  1112. 

PRO  CONFESSO, 

bill  may  be  taken  when  answer  not  filed,  etc.,  Eq.  R.  12,  §  810. 
decree,  see  Decree  pro  Confesso. 

entered  if  answer  not  filed,  Eq.  R.  29,  §§  880,  900. 

on  default  in  answer,  Eq.  R.  16,  §  811. 

to  be  followed  by  final  decree,  Eq.  R.  17,  §  813. 
taking  bills,  motion  for,  grantable  of  course  by  clerk,  Eq.  R.  5.  §  823. 


INDEX.  1177 

PROCTORS, 

admission  to  Supreme  Court,  §  1532. 
fees  of,  9  409. 

PRODUCTION, 

and  inspection  of  documents,  etc.,  Eq.  R.  58,  5§  670,  940. 
books  and  papers  under  customs,  revenue  laws,  §  572. 
books,  documents  and  papers,  depositions  under  commission,  9  387. 
books,  etc.,  compelling  under  act  establishing  bureau  of  war  risk  insur- 
ance, §  361. 

documents  may  be  enforced,  Eq.  R.  58,  §§  670,  940. 
interrogatories,  as  a  basis  for,  §  946. 

of  books,  papers,  etc.,  may  be  required  by  master,  Eq.  B.  62,  S  1063. 
person,  habeas  corpus,  §  1338. 

PROHIBITION, 

circuit  court  of  appeals, 

Rules  33  C.  C.  A.   (6th  Circuit)    Appendix. 
Supreme  Court,  writ  of,  9  1534. 

PROHIBITION  LAWS,  see  also   Alaska  and  District  of  Columbia,  civil  action 

for  injuries,  §  1726. 
injunction  against  violation  of,  9  1121. 

PROOF, 

differences  in  law  and  equity,  §  6. 
infringement  suits,  §  1046. 
mode,  in  equity,  §  1042. 

in  law  actions,  §  595. 

motion  to  dismiss  does  not  consider,  §§  883.  901. 
records,  on  removal  when  copies  refused  by  state  court  clerk,  9  213. 
signature  and  handwriting,  i  312. 

PROPER  PARTIES, 
see  also  Parties. 

absence  of,  Eq.  R.  39,  §§  697,  71». 
bill  in  equity,  £  697. 

PROPERTY, 

attachment  of,  §  485. 

condemnation  of  insurrectionary,  renue,  9  78. 

PROSECUTION, 

by  district  attorney,  §  1361. 

criminal  offenses,  method  of,  §  1360 

failure  to  file  rebate  tariffs,  venue  of  notion.  $  80. 


1178  INDEX. 

/ 

PROSECUTION  (Continued). 

fortifications,  injuries  to,  venue,  §  83. 
venue,  §§  75,  76. 

venue — violations,  immigration  laws,  §  85. 
venue — violation  sixteen  hour  law,  §  81. 

PEO  VISIONAL, 
depositions, 

see  Depositions  de  Bene  Esse. 
remedies, 

attachment,  ch.  17. 

garnishment,  ch.  17. 

injunctions,  ch.  54. 

preserved  on  removal  of  causes  from  state  to  federal  courts,  §  216. 

receivers,   ch.  53. 

PUBLICATION, 

depositions  in  equity  on  filing,  §  392. 

deposition,  when  filed,  Eq.  R.  55,  §  372. 

execution,  sale  of  real  estate,  §  641. 

interstate  commerce  reports  and  decisions  as  evidence,  §  361. 

process,  §  66. 

summons,  §  526. 

PUBLIC  MINISTERS,  Supreme  Court,  suits  against,  in,  §  1534. 
PUBLIC  MONEY,  continuance  in  suit  against  delinquent,  §  563. 


Q. 

QUALIFICATIONS, 

jury,  trial  laws  actions,  §  584. 

civil  rights  acts,  §  585. 

penalty  for  exclusion,  §  586. 
receivers,  §  1080. 

QUESTION,  see  Federal  Question. 

arising  under  the  Constitution,  §  124. 

federal  laws,  §  125. 

treaties,  §  125. 
of  jurisdiction,  what  is,  §  1552. 

QUESTIONS,  competency,  materiality  or  relevancy  of,  not  to  be  decided  by 
examiner,  Eq.  R.  51,  §  381. 


INDEX.  1179 


QUIET  TITLE, 

amount  in  controversy,  what  is,  §  174. 
possession  in  suit  to,  §  861. 

QUORUM, 

circuit  court  of  appeals,  Rule  4,  C.  C.  A.  Appendix,  J  1471. 

court  of  claims,  §  1431. 

court  of  customs  appeals,  §  1452. 

Supreme  Court,  §  1530. 

B, 
RAILWAY, 

companies,  claims  for  transportation   furnished  the  government,  §  1432. 
patents,  statute  of  limitations,  §  246. 

RATE  OF  INTEREST,  see  Interest. 
REAL  PARTY,  in  interest,  Bq.  B.  37,  §  710. 

REAL  PROPERTY, 

receiver's  jurisdiction  over,  when  outside  of  district  within  circuit,  venue, 

§67. 
sale  of,  see  Executions. 

REBATE,  tariffs  giving,  prosecution  for  failure  to  file,  venue,  §  80. 

RECEIVERS,  ch.  53. 

jurisdiction  over  real  property  outside  district  in  circuit,  venue,  §  67. 

leave  of  court,  when  not  necessary  for  suit  against,  §  1083. 

manage  properties  according  to  state  laws,  §  1081. 

qualifications  of,  9  1080. 

suits  against,  without  leave  of  court,  §§  1082, 1083. 

RECEIVERSHIP, 

appeals  from  district  court  to  circuit  of  appeals,  §  1502* 
injunction  against  proceedings  against  national  banks,  §  1116. 

RECLAMATION  ACT,  jurisdiction  district  court,  8  H2. 

RECOGNIZANCE, 

bail,  see  that  heading,  §  1277. 
criminal  cases,  witnesses,  §  340. 

in  Vermont,  §  341. 

on  behalf  of  United  States  district  attorney,  5  342. 
forfeiture  of,  §  1268. 
remittance  of,  §  1268. 
witnesses  in  criminal  cases,  j  340. 

in  Vermont,  §  340. 

on  behalf  of  United  States  district  attorney,  §  342. 


1180  INDEX, 

RECORD, 

amendment  of,  Eq.  R.  19,  §  760. 

appeal  and  error,  papers  and  proceedings  in,  §  1669a 

appellant's  statement  as  to  record  on  appeal  to  become  part  of,  Eq.  R.  75, 

§  1671. 

bill  of  review  to  correct  error  on  face  of,  §  1180. 
court  may  permit  any  record  to  be  amended,  Eq.  R.  19,  §  760. 
evidence,  how  stated  in,  Eq.  R.  75,  §  1671. 

RECORD  ON  APPEAL, 

additional  portions,  precipe  by  appellee,  Eq.  R.  75,  §  1671. 
agreed  statement,  Eq.  R.  77,  §  1671. 
appellant's  precipe  for,  Eq.  R.  75,  §  1671. 
'     circuit  court  of  appeals, 

Rule  21  C.  C.  A.  (6th  Circuit)  Appendix, 
copy  of,  C.  C.  A.  Rule  27,  C.  C.  A.  Appendix, 
costs — correction  of  omission,  Eq.  R.  76,  §  1671. 
costs  for  infraction  of  rule,  Eq.  R.  76,  §  1671. 
differences  as  to,  Eq.  R.  75,  §  1671. 
diminution  of,  §  1689. 

district  to  Supreme  Court,  one  record  sufficient,  §  1673, 
evidence  condensed  in,  Eq.  R.  75,  §  1671. 
filing  of,  C.  C.  A.,  §  1672. 
indicating  .portions  of,  Eq.  R.  75,  §  1671. 
instructions  as  to  making  up  for  circuit  court  of  appeals, 

Addenda  Rule  45  C.  C.  A.  Appendix, 
omission  in,  correction,  costs,  Eq.  R.  76,  §  1671. 
one  sufficient  where  both  parties  appeal,  §  1673. 
precipe,  copy  of,  indicating  portions  of,  Eq.  R.  75,  §  1671. 
preparation  of,  Eq.  R.  75,  §  1671. 
printing  of  (see  that  heading)  on  appeal  to  Supreme  Court,  §  1673. 

of  C.  C.  A.,  §  1672. 

reduction  and  preparation,  costs,  correction  of  omission,  Eq.  R.  76,  §  1671. 
service  of  copy  of  precipe,  Eq.  R.  75,  §  1671. 
translations, 

Rule  15,  C.  C.  A.  Appendix. 

Rule  16,  3d  Circuit  under  Rule  15  C.  C.  A.  Appendix, 
writ  of  error,  §  1670. 

RECORDS, 

copies  as  evidence, 

clerk's  new,  §§  305,  306. 
Commissioner  of  Indian  Affairs,  §  299. 
Comptroller  of  Currency,  §  288. 
,        Department  of  Interior,  §  294. 
Executive  Departments,  §  286. 


INDEX.  1181 

RECORDS  (Continued). 

copies  as  evidence   (continued). 

foreign,  filed  in  departments  relating  to  land  title,  5  276. 

lost  or  destroyed,  §§  280,  285. 

navy,  §  291. 

patent  office,  §§  300,  303. 

postoffice,  §§  295,  296. 

solicitor  of  treasury,  §  287. 

state,  §  275. 

Supreme  Court,  lost  or  destroyed,  5  282. 

Treasury  Department,  §§291,  293. 

war,  in  suits  against  delinquents,  §  291. 
district  court,  place  for  keeping,  §  54. 

transfer  of  territorial,  §  54. 
judgment  law  actions,  §  625. 

index  of,  §  626. 

restoration  of,  see  Restoration  of  "Records,  §§  281,  285. 
return  of,  removal  of  causes,  §  214. 

REDUCTION, 

record  on  appeal  or  error,  9  1670. 

REDUCTION  AND  PEEPARATION  OF  RECORD  ON  APPEAL,  Eq.  R.  75, 
9  1671. 

REDUNDANT  MATTER, 

motion  to  strike,  equity,  ch.  42,  §§  930,  935. 

REFEREE,  bankruptcy,  matters  under  equity  rule  66,  9  1074. 

REFERENCE, 

accounts  to  master  costs,  Eq.  R.  59,  §  1061. 
consent  to,  effect  of,  §  1075. 
exceptional  matters,  illustrated,  §  1064. 
masters  in  chancery, 

costs,  §  1070. 

exceptions,  §  1070. 

hearing,  §  1062. 

notice,  §  1062. 

report,  §  1070. 

notice  of  hearing  before  master.  5  1062. 
stipulation  for,  effect  of,  §  1075. 
to  master — exceptional,  not  usual,  Eq.  R.  59,  1 1061. 

REGULATION,  master  in  chancery  proceedings,  §  1063. 


M82  INDEX. 

REHEARING,  ch.  57. 

allowance  of  petition  as  suspending  decree,  §  1161. 
bill  of  review,  ch.  58. 
circuit  court  of  appeals, 

Rule  27  C.  C.  A.  (3d,  7th,  and  8th  Circuits)  Appendix. 

Rule  28  C.  C.  A.  (6th  Circuit)  Appendix. 

Rule  29  C.  C.  A.  (1st  and  2d  Circuits)  Appendix, 
discretion    of   court,  §  1164. 

if  appeal  lies  to  C.  C.  A.  not  granted  after  term,  Eq.  R.  69,  §  1160. 
newly  discovered  evidence,  §§  1162,  1163. 
petition  for,  provisions  as  to,  Eq.  R.  69,  §  1160. 

REINSTATEMENT  OF  CAUSES,  continued,  Eq.  R.  57,  §§  679,  1032. 
RELATIONSHIP,  district  judge,  outside  judge  to  serve,  §  25. 
RELEASE,  motion  to  dismiss  setting  up,  §  89-1. 

RELEVANCY  OF  QUESTIONS,  not  to  be  decided  by  examiner,  etc.,  Eq.  R. 
51,  S  381. 

RELIEF, 

retaining  case  to  afford  complete,  §  1146. 

special,  prayer  for,  to  be  stated  in  bill,  Eq.  R.  25,  §  698. 

to  be  verified  by  oath  of  plaintiff,  etc.,  Eq.  R.  25,  §  700. 

RELIEF  GRANTED,  differences  law  and  equity,  §  «. 

REMANDING, 

bias,  failure  to  show,  §  202. 

cases  removed  from  state  court,  §  20L 

diverse  citizenship,  class  two,  §  203. 

federal  question,  class  one,  §  203. 

fraud  for,  §  215. 

generally,  §  215. 

improperly  removed,  §  215. 

prejudice,  failure  to  show,  §  202. 

separable  controversy  in  cases  removed  for  bias  or  prejudice,  S  201. 

REMEDY, 

adequate  at  law,  ch.  37. 
attachment,  see  that  heading^  §  483. 
complete,  retain  case  to  afford,  §  114tt. 
conditional  decree,  §  1144. 
discovery,  see  that  heading. 


INDEX.  11S3 

REMEDY  (Continued). 

differences  law  and  equity,  §  6. 

equity  suit,  see  that  heading,  ch.  25. 

garnishment,  ch.  17. 

law  action,  see  that  heading,  ch.  15. 

legal  in  an  equity  suit,  §  860. 

removal  of  causes,  provisional,  in  state  court  preserved,  §  21ft. 

retaining  case  to  afford  complete  relief,  §  1146. 

REMEDY  AT  LAW,  ch.  37,  §  267,  Jud.  Code. 

REMOVAL  BY  WRIT  OF  ERROR  TO  STATE  COURT,  ch,  74. 
see  also  Removal  of  Causes,  ch.  9. 

appellate  method  of  review  state  court  decision,  §  1602. 
authority  federal,  decision  against  federal,  §  1605. 

decision   against   right,   title,   privilege   or   immunity  claimed    nnder, 

51607. 
commission,  removal   decision  against  right,  title,  privilege,  or  immunity 

claimed  under  federal,  §  1607. 
constitution,  decision  against  federal,  §  1605. 

decision   against   right,  title,   privilege,  or   immunity   claimed   under 

federal,  §  1607. 
decree  removable,  §  1603. 

immunity,  federal,  state  decision  against,  §  1607. 
judgments  removable,  §  1603. 
jurisdiction  under,  §  237,  Jud.  Code,  §  1601. 
privilege,  federal,  state  decision  against,  S  1607. 
procedure  on,  §  1609. 
reviewablc  cases,  §  1604. 
right,  federal,  state  decision  against,  S  1607. 
state  statutes  claimed  repugnant  to   federal  authority,  state  decision  in 

favor  of,  §  1606. 

statute,  federal,  state  decision  against,  S  1607. 
title,  federal,  state  decision  against,  §  1607. 
treaty,  federal,  state  decision  against  validity,  $  1605. 

state  decision  against  right,  title,  privilege,  or  immunity  claimed  under, 
S  1607. 

REMOVAL  OF  CAUSES,  ch.  9. 

see  also  Removal  by  Writ  of  "Error  to  State  Court,  ch.  74, 
aliens,  suits  against  federal  officers,  class  six,  S  2U6. 

same,  habeas  corpus  in,  9  208. 
bias  of  state  court,  class  four,  {$  191,  200* 
bond,  diverse  citizenship,  §  196. 

federal  question,  §  196. 

in  state  court  preserved,  §  216. 

separable  controversy,  $  196. 


1184  INDEX. 

REMOVAL  OP  CAUSES  (Continued). 

carrier,  employers'  liability  cases  not  removable,  §  204. 
certiorari,  congressional  officers,  cases  against,  §  212. 

revenue  officers,  cases  against,  §  212. 
cml  rights  cases,  class  seven,  §  207. 

habeas  corpus,  §  208. 

remanding,  §  215. 

common  carriers,  employers'  liability  cases  not  removable,  §  204. 
congressional  officers,  §  212. 

revenue  officers,  §  212. 
congressional  officers,  certiorari  in  cases  removed  against,  §  212. 

officers,  class  eight,  §§  209  et  seq. 

habeas  corpus  in  cases  removed  against,  §  212. 
constitutional  question  a  ground  for,  §  126. 
dismissal  of  suits  fraudulently  or  improperly  removed,  §  215. 
diverse  citizenship,  bond,  §  191. 

class  two,  §  193. 

remanding  or  dismissing   cases   fraudulently   or  improperly   removed, 
§215. 

procedure,  §  195  et  eeq. 

duty  of  state  court  on  removal  of  causes,  §  197. 
employers'  liability,  common  carrier  cases  not  removable,  §  204. 
federal  officers,  aliens  against,  §  206. 

certiorari,  §  212. 

congressional,  against,  §  209. 

habeas  corpus,  §§  208,  212. 

revenue,  against,  §  209. 
federal  question,  bond,  §  196. 

class  one,  §  192. 

as  a  ground,  §  126. 

dismissing  cases  improperly  or  fraudulently  removed,  §  215. 

procedure,  §  195  et  seq. 

fraud,  ground  for  dismissal  or  remanding,  §  215. 
grounds,  §  190. 

habeas  corpus,  civil  rights  eases,  §  208. 
judge  of  state  court,  duty  on  removal  of  ease,  §  197. 
jurisdiction,  see  that  neading, 

class  one,  federal  question,  §§  191,  192. 

class  two,  diverse  citizenship,  §§  191,  193. 

class  three,  separable  controversy,  §§  191.  200. 

class  four,  bias  or  prejudice,  §§  191,  200. 

class  five,  land  grants,  §  205. 

class  six,  aliens  against  federal  officers,  §  206. 

class  seven,  Civil  Eights  Cases,  §  207. 

class  eight,  against  congressional  or  revenue  officers,  §  209. 


INDEX.  1185 

REMOVAL  OF  CAUSES  (Continued), 
land  grant  cases,  class  five,  §  205. 

laws  of  United  States,  question  arising  under,  ground  for,  §  128. 
notice,  removal  of  causes,  classes  1,  2,  3,  §  198. 
officers,  aliens  against  federal,  §  206. 

certiorari  in  cases  against,  §  212. 

congressional,  against,  §  209. 

habeas  corpus,  I  212. 

revenue  against,  §  209. 
pleading,  see  Procedure,  below 
prejudice,  in  state  court,  class  four,  §§  191.  200. 
procedure,  after  removal  in  classes    1,  2,  3,  §  199. 

aliens  against  officers,  §  206. 

bias  of  state  court,  §§  200  et  seq. 

Civil  Bights  Cases,  §§  207,  208. 

eongressional  officers,  §§211,  212. 

diverse  citizenship,  §  195  et  seq. 

federal  officers,  §  206  et  seq. 

federal  question,  §  195  et  seq. 

generally,  §  217. 

land  grants,  §  205. 

officers,  §  206  et  seq. 

prejudice  of  state  court,  §  200  et  seq. 

remanding,  see  that  heading. 

revenue  officers,  §  210  et  seq. 

separable  controversy,  §  195  et  seq. 
proceedings,  see  Procedure,  above. 

after  removal  in  classes  1,  2,  3,  §  199. 

generally,  §  217. 

proof  of  records  of  state  court  when  copies  refused  by  clerk,  |  219. 
records  of  state  court,  return  of,  §  214. 
remanding,  bias,  failure  to  show,  §  202. 

diverse  citizenship,  class  two,  §  203. 

federal  question,  class  one,  §  203. 

fraud,  §  215. 

generally,  §  215. 

improperly  removed  cases,  §  215. 

prejudice,  failure  to  show,  §  202. 

separable  controversy  in  cases  removed  for  bias  or  prejudice,  9  201. 
remedies,  provisional,  in  state  courts,  preserved,  §  216. 
return  of  record  from  state  court,  enforcement  of,  8  214. 
revenue  officers,  cases  against,  §  209. 

certiorari  and  habeas  corpus,  §  212. 
separable  controversy,  class  three,  §§  191,  194. 

remanding  in  cases  removed  or  bias  or  prejudice,  5  201. 

M»nu»l— 75    * 


1186  INDEX. 

REMOVAL  OP  CAUSES  (Continued). 

state  court,  bond  in  and  provisional  remedies,  preserved  on  removal,  8  218. 
treaties,  question  arising  under,  ground  for,  §  126. 

REMOVING  CLOUD,  §  66. 
amount  involved,  §  174. 
serving  nonresident,  §  66. 

REPAIRS,  lien  on  vessels  for,  §  1714. 

REPLEVIN,  revenue  laws,  none  for  property  taken  under,  1 170*. 

REPLICATION,  see  Reply,  §  1011. 

REPLY,  eh.  47. 

answer   in   equity,   when    required   to,  §  1010. 

confession  and  avoidance,  §  1011. 

counterclaim,  Eq.  R.  31,  eh.  47. 

counterclaim  or  setoff  in  equity,  §  1010. 

issue  on,  §  675. 

none   required  unless  answer   asserts  setoff  or   counterclaim,   Eq.   B.  31, 

ch.  47. 

scope  of,  I  1011. 
time  for,  §  674. 
when  required — when  cause  at  issue,  Eq.  R.  31,  ch.  47. 

REPORT, 

confirmation  of  master's,  §  1072. 
costs  on  exceptions  to,  Eq.  R.  67,  §  1070. 
exception  to  master's,  §  1071. 
master's, 

exceptions,  hearing,  Eq.  R.  66,  §  1070. 

identifies  but  does  not  state  affidavits,  answer,  etc.,  Eq.  R.  61,  §  1070. 

to  court,  Eq.  R.  60,  §  1062. 
reference  by  consent,  §  1075. 

REPORTER,  Supreme  Court,  §  153L 

REPORTS, 

circuit  court  of  appeals,  §  1475. 
court  of  claims,  §  1439. 
district  court  decisions,  §  20. 

investigations  of  accidents  from  failure  of  boilers,  not  admissible  in  dam- 
age suits,  5  309. 
master  in  chancery,  §  1070,  see  Report,  above. 


INDEX.  1187 

REPORTS  OF  DECISIONS,  §  55. 
Supreme  Court,  §  1531. 

REPRESENTATIVE  OF  DECEASED  PASTY, 

procedure   in   Supreme   Court   when    without   jurisdiction   of  trial    court, 

§  1692. 

procedure  in  circuit  court  of  appeals,  when  without  jurisdiction  of  trial 
court,  §  1692. 

REPRESENTATIVES,  diverse  citizenship  of,  9  149. 
REPRESENTATIVES  of  a  class  may  sue  or  defend,  Eq.  R.  38,  5  715. 

RESCUE, 

extradition,  intrastate,  penalty  for,  §  1316. 

from  foreign  country,  penalty  for,  §  1314. 

RESIDENCE, 

assignor  of  plaintiff,  5  97. 

bill  in  equity,  allegation  of,  5  694. 

corporations,  allegations  of,  §  144. 

each  party's  must  be  stated  in  bill,  Eq.  E.  25,  |  694. 

RESPONSE. 

circuit  court  of  appeals, 

Rule  39  C.  C.  A.  (8th  Circuit)  Appendix. 

RESTORATION  OF  RECORDS, 
judicial,  $  281. 

in  which  United  States  are  disinterested,  by  United  States  attorneys, 

§485. 
service  of  notice  on  nonresidents,  §  283. 

RESTRAINING  ORDEB, 
see  also  Injunction, 
bond,  §  1102. 
dissolution,  §  1105. 
filing,  §  1106. 

national  bank,  not  to  issue  in  state  court,  1 1117. 
notice  of,  §  1103. 
procedure  when  issued  without  notice,  J  1104. 

RESTRAINING  ORDERS,  temporary,  and  preliminary  injunctions,  Eq.  B.  73, 
§  1103  et  seq. 

RETURN, 

amendment,  habeas  corpus,  |  1340. 

contract  to  Returns  Office  Department  of  the  Interior,  copy  as  evidence, 
§294. 


1188  INDEX. 

RETURN  (Continued). 

copies  of  lost  or  destroyed,  as  evidence,  §  284. 
denial  of,  on  writ  habeas  corpus,  §  1340. 
final  process,  Eq.  R.  1,  f  822. 
form  of,  habeas  corpus  writ,  §  1337. 

process  in  equity,  §§  798,  799. 
"habeas  corpus, 

amendment,  §  1340. 

denial  of  return,  §  1340. 

form  of  return,  §  1337. 

time  of  return,  §  1306. 

master's  report — exceptions — hearing,  Eq.  R.  66,  §  1070. 
process  in  equity,  §§  791,  798,  799. 
removal  of  causes,  enforcement  of  return  of  record  from  state  to  federal 

court,  §  214. 

rules  governing  in  equity,  §  799. 
subpoena  in  equity,  §§  664,   791,  798. 

not  executed,  Eq.  R.   14,  §  794. 
time  of,  habeas  corpus  writ,  §  1336. 

in  equity,  §§  664,  791. 
venire  for  jury,  law  actions,  §  590. 
writ  of  error  Rule  14,  C.  C.  A.  Appendix. 

form  of  (8th  Circuit)  Appendix. 

Addenda  to  Rule  45  C.  C.  A.  (8th  Circuit)   Appendix. 

RETURNS  on  process  to  be  entered  on  equity  docket,  Eq.  R.  3,  Appendix. 

REVENUE, 

costs  against  nonsuited  plaintiff  in  action  against  officer,  double,  §  433. 

costs,  none  against  United  States  upon  information,  §  430. 

costs,  seizure  cases,  §  431. 

jurisdiction  in  revenue  cases,  §  101. 

motion  and  notice  to  produce  books  and  papers,  §  572. 

officers,  see  Revenue  Officers. 

priority  of  cases,  §  1702. 

prosecutions  of  fraud,  by  district  attorney,  §  1704. 

replevin   does  not  lie   for  property  taken,  §  1703. 

statutes  of  limitations,  §  235. 

suits  in  name  of  United  States,  §  1703. 

venue,  §  76. 

witnesses  not  disqualified  by  claiming  compensation, 

REVENUE  OFFICERS, 

certiorari  in  removal  cases,  §  212. 
costs  double,  nonsuit  against,  §  433. 
executions,  when  do  not  issue  against.  §  632. 


INDEX.  1189 

REVENUE  OFFICERS    (Continued)/ 

habeas  corpus,  in  removal  of  cases  against,  §  212. 

procedure  in  removal  cases,  §  210. 

removal  of  causes  against,  class  eight,  §  209. 

REVERSAL, 

decree  by  appellate  court  not  unless,  Eq.  R.  46,  9  1043. 

facts,  ndie  for  error  in,  §  1686. 

not  for  wrong  form  of  appellate  review,  §  1693. 

REVERSED,  decrees  not  to  be,  unless  material  prejudice  would  result,  Eq.  R. 
46,  §  1043. 

REVIEW,  see  Bill  of  Review,  §  1182. 
appellate  court, 

differences,  law  and  equity,  §  6. 

certiorari,  final  decisions  of  circuit  courts  of  appeal,  §  1677. 
District  of  Columbia  court  of  appeals  by  Supreme  C'ourt,  §  1561, 
state  court  decisions,  time  for,  §  1656. 
writ  of  error  to  state  court,  §  1604. 

REVIEW,  BILL  OF,  ch.  58. 

REVISED   STATUTES, 

authorized  editions,  §§271,  273. 

Richardson's  Supplement  of  Revised  Statutes  as  evidence,  9  273. 

table  of,  Appendix,  p.  1025  et  seq. 

REVIVOR,  ch.  33. 

bill  of,  Eq.  R.  35,  ch.  33. 

on  death  of  party,  Eq.  R.  45,  9  763. 

REVOCATION,  of  appointment  of  outside  judges,  9  22. 

RHODE .  ISLAND,   districts,   terms  and   places   of   holding  court,  9  104.  Jud. 
Code,  Appendix. 

RIGHT,  removal  by  writ  of  error,  state  court  decision  against,  9  1607. 
RIVERS,  jurisdiction  of  district  court  to  remove  obstructions  in,  9  102. 
ROOMS  FOR  HOLDING  COURT,  court  of  customs  appeals,  9  1452. 
RULE  DAYS  abolished,  9  821. 

RULES, 

additional  by  district  court,  Eq.  R.  79,  §§  8,  58. 

admiralty,  circuit  court  of  appeals  follow  the  Addenda  to  Rule  45'  C.  C.  A. 
Appendix,  p.  845  et  seq. 


1  190  INDEX. 

RULES  (Continued). 

admission  to  practice, 

circuit  court  of  appeals,  §  1474, 

court  of  claims,  §  1430. 

district  court,  §  56. 

Supreme  Court,  §  1532. 

adopting  state  attachment  and  garnishment  remedies,  §  481.  f 
award  of,  by  judge  at  chambers,  etc.,  Eq.  R.  1,  §  822. 
chambers,  Eq.  R.  1,  §  822. 

circuit  court  of  appeals  for  all  circuits,  Appendix,  §  1473,  p.  845. 
.      C.  C.  A.,  table  of,  Appendix,  p.   1034. 
court  of  claims,  §  1434. 
court  of  customs  appeals,  §  1452. 
deposition,  form  of,  §  380. 

objections  to,  §  381. 

signing,  §  382. 
determining  jurisdiction  circuit  court  of  appeals  and  Supreme  Court  whei. 

question  of  jurisdiction  in  issue,  §  1553. 
discovery  not  altered,  §  941. 
equity,  annotated,  in,  Appendix,  p.  971. 

regulating  proceedings,  §  3. 

suit,  §  58. 

summary  of  proceedings,  ch.  25. 

table  of,  Appendix,  p.  1035. 

grantable  of  course,  received  and  disposed  of  by  clerk,  Eq.  R.  2,  Appendix, 
interlocutory,  making  and  directing,  Eq.  R.  1,  §  822. 
law  actions,  §§  57,  450. 
old,  abrogated,  Eq.  R.  81,  Appendix. 
Supreme  Court,  in,  Appendix,  §  817  et   seq. 
Supreme  Court,  table  of,  Appendix,  p.  1034. 
tables  of, 

circuit  courts  of  appeals,  Appendix,  p.  1034. 

equity,  Appendix,  p.  1035. 

Suprenre   Court,   Appendix,  p.   1034. 

when  effective,  Eq.  R.  81,  Appendix.  -r-pSTH 

when  they  may  be  amended,  Eq.  R.  1,  §  822. 

RULINGS, 

exceptions  to,  in  law  actions,  §§  596,  597. 
trial  law  actions,  taking  of,  §  596. 
time  for  taking,  §  597. 


INDEX. 

8. 

SALARY,  see  headings  of  various  officers. 

SALE,  amount  due  above  proceeds  of  decree  for,  Eq.  R.  10,  9  1140. 

SALE  OP, 

personal  property, 

appraisal  of,  on  execution,  9  644. 

place  of  sale  on  execution,  9  640. 
real  estate, 

marshal's  successor  to  continue  proceedings,  §  642. 

place  of  sale  on  execution,  9  640. 

purchase  by  government  in  government  suits,  9  643. 

SCANDAL, 

equity  suit,  removal  of,  §9  967,   930. 
exceptions  for,  shall  not  obtain,  Eq.  R.  21,  9  967. 
illustration  of,  9  932. 
motion  to  strike,  ch.  42. 

SCANDALOUS  MATTER, 

signature  of  solicitor,  certificate  that  none  inserted  in  pleading,  Eq.  R.  24, 

9699. 
striking  out,  Eq.  R.   21,  99  930,  967. 

SCIRE  FACIAS,  writ  of,  5  1114. 
SCOPE,  defensive  pleading  at  law,  9  544. 

SEAL, 

circuit  court  of  appeals,  9  1473 ;  Rule  2  C.  C.  A.  Appendix. 
9  2,  Rule  2,  6th  Circuit  under  Rule  2  C.  C.  A.  Appendix. 
Department  of  Commerce  and  Labor,  judicial  notice  of,  9  307. 

SEAMAN, 

consul's  jurisdiction  over,  9108. 

witness  fees  when  sent  home  to  give  testimony  in  criminal  cases,  9  422. 

SEARCHES,  under  custom  laws,  9  1705. 
SECOND   CIRCUIT,    outside    judge,  9  24. 

SEDUCTION  OP  FEMALE  PASSENGERS  ON  VESSELS,  statutes  of  limi- 
tations, 9  236. 


1192  INDEX. 

SEIZUKES, 

burden  of  proof  under  customs  duties  laws,  §  308. 
for  embargo,  forfeiture,  insurrection,  venue,  §  79. 
letters  carried  contrary  to  law,  §  1716. 

disposal  of,  §  1717. 

procedure  in  cases  under  custom  laws,  §  1706. 
under  custom  laws,  §  1705. 
venue,  §  76.  '  . 

SENTENCES,  prize  cases,  appeals  to  Supreme  Court,  §  1554. 

SEPARABLE  CONTROVERSY, 
bond  in  removal  cases,  §  196. 
in  joint  and  several  liability,  §  194. 

remanding  of,  in  cases  removed  for  bias  or  prejudice,  §  201. 
removal  of  causes,  §§  191,  194. 
what  is,  §  194. 

SEQUESTRATION,  WRIT  OF,  • 

against  estate  of  delinquent,  Eq.  R.  8,  §§  473,  1112,  1140,  1143. 

person  other  than  disobedient  party  to  comply  with  mandatory  order  for 

specific  performance,  Eq.  R.  8,  §§  473,  1112,  1140,  1143. 
proper  process  if  defendant  not  found,  E'q. 'R.  7,  §  1112. 

SERVANTS  OF  AMBASSADORS,  Supreme  Courts,  suits  against  in,  §  1534. 

SERVICE, 

affidavit  of,  Eq.  R.  15,  §  796. 

attachment  not  basis  for  substituted,  §  483. 

by  whom  made  in  equity,  §§  524,  796. 

foreclosure  of  liens,  §  66. 

form  of  return  of,  in  equity,  §  798. 

manner  of,  in  equity,  §  797. 

mesne  process  in  equity,  §§  796,  797. 

papers,  circuit  court  of  appeals, 

Rule  9,  6th  Circuit,  Appendix, 
process,  Eq.  R.  15,  §  796. 
process  in  equity,  by  whom,  §§  524,  796.  797. 

manner  of,  §  525. 
process  in  equity — return,  form  of,  §  798. 

return  of,  §  791. 

return,  time  for,  §§  664,  791. 
publication  of,  §§  66,  526. 

form  on  process  in  equity,  §'798. 

return  of,  process  in  equity,  §  791. 

time  for  in  equity,  §  664. 


INDKZ.  1193 

SERVICE  (Continued). 

•ubpoena,  by  whom,  §§  524,  794. 

form  of,  §§  793,  798. 

manner  of,  §§  525,  797. 

return  of,  §  791. 

time  for,  §§  664,  791. 
subpoena  on  defendant,  Eq.  R.  13,  §  797. 
summons  in  equity,  see  Subpoena,  f  §  524,  525,  796,  797. 
time  for,  in  equity,  §§  664,  791. 

SERVICE  OF  SUBPOENA  by  delivery  of  copy,  etc.,  Eq.  R.  13,  5  797. 

SESSIONS, 

see  also  Terms. 

circuit  court  of  appeals,  Rule  3  C.  C.  A.  Appendix. 

Rule  36  C.  C.  A.  (9th  Circuit)  Appendix, 
court  of  claims,  §  1431. 
customs  appeals,  §  1453. 
district  court,  ch.  5,  Jud.  Code,  Appendix. 
Supreme  Court,  §  1533. 

SETOFF,  ch.  45. 

see  also  Counterclaim. 

amount  in  controversy,  effect  on,  §  177. 

answer  in  equity,  §§  980,  981. 

court  of  claims,  enforcement  of  judgment,  §  1439. 

motion  to  strike  out,  Eq   R.  33,  ch.  46,  §  967. 

reply  to,  §  1010. 

sufficiency  tested  by  motion  to  strike  out,  §  1000. 

to  be  replied  to,  Eq.  R.  31,  ch.  47. 

to  be  stated  in  answer,  Eq.  R.  30,  §  980. 

SETTING  FOR  TRIAL,  CALENDAR,  ch.  49. 

SETTING  FOR  TRIAL,  time  for,  §  1030. 

SETTLEMENT,  decree,  objections  to  draft  of,  §  1142. 

SETTLEMENTS  FOR  CUSTOMS  DUTIES,  statutes  of  limitations,  |  240. 

SHIFTING,  parties  to  create  diverse  citizenship,  {  157. 

SIGNATURE, 
decree,  §  1142. 

interrogatories  answer,  Eq.  R.  58,  §§  270,  670,  940,  962r. 
of  witness,  Eq.  R.  51,  §  382. 
pleadings  to  be  signed  by  solicitors  of  record,  Eq.  R.  24,  {  699. 


1194  INDEX. 

SIGNING,  depositions,  Equity  Rule  as  to,  §  382. 

SIXTEEN  HOUR  LAW,  PROSECUTIONS  UNDER,  venue,  §  81. 

SLAVE  TRADE,  statute  of  limitations,  §  234. 

SOLICITOR  OF  THE  TREASURY,  records,  copies  as  evidence,  §  287. 

SOLICITORS,  see  also  Attorneys. 

clerk  to  send  copies  of  interrogatories  to,  Eq.  R   58,  §  940. 

costs  imposed  on  offending,  Eq.  R.  76,  §  1671. 

fees  of,  §  409. 

notice  to,  of  proceedings  before  master,  Eq.  R.  60,  §  106'2. 

noting  or  entry  of  order  not  notice  to,  Eq.  R.  4,  §  825. 

offending,  imposition  of  costs  on,  E'q.  R.  76,  §  1671. 

of  record, 

to  be  furnished  copy  of  amended  bill,  E'q.  R.  28,  ch.  31. 
to  sign  every  pleading,  Eq.  R.  24,  §  699. 
to  file  preripe  indicating  portions  of  record  on  appeal,  Eq.  R.  75,  §  1671. 

SOUTH  CAROLINA,  districts,  terms  and  places  of  holding  courts,  §  105,  Jud. 
Code,  Appendix. 

SOUTH  DAKOTA, 

districts,  terms  and  places  of  holding  court,  §  106,  Jud.  Code,  Appendix, 
jurisdiction  district  court  over  crimes  on  Indian  reservations  in,  §  106. 

SPECIAL  APPEARANCE,  to  quash  process,  §  527. 
SPECIAL  BAIL,  suits  for  duties,  §  1273. 
SPECIAL  COUNSEL,  to  aid  district  attorney,  §  33. 

SPECIAL  JURIES, 
see  also  Juries, 
trial  law  actions,  §  592. 

SPECIAL  TAX,  payment  of,   under  District  of   Columbia,   prohibition   laws, 
§316. 

SPECIAL  TERMS, 
district  court,  §  51. 
Supreme  Court,  §  1533. 

SPECIAL  VERDICT,  see  Verdict,  §  610. 


INDEX.  1195 

SPECIFIC  PERFORMANCE,  enforcement  of  decree,  Eq.  B,  8,  |§  473,  1112, 

1140,  1143. 
damages  in  suit  for,  §  861. 

SPLITTING  DEMANDS,  amount  in  controversy,  state  statutes  do  not  con- 
trol, §  180. 

STANDING   MASTERS   IN   CHANCERY,  court!  may   appoint,   Eq.   E.  88, 
§  1060,  see,  also,  Master. 

STATE, 

court  records,  evidence  of,  §  274. 

courts,  see  State  Courts. 

criminal  jurisdiction  not  affected,  §  1206. 

district  courts  in,  ch.  5,  Jud.  Code,  Appendix. 

diverse  citizenship,  not  citizens,  §  143. 

federal  judicial  districts  in,  ch.  5,  Jud.  Code,  Appendix. 

judicial  districts  in,  9  50. 

jurisdiction  of  offenses,  §  1205. 

concurrent  with  district  court,§  93. 
laws,  see  State  Laws, 
legislative  acts,  evidence  of,  §  274. 
not  a  citizen,  §  143. 

party  to  suit  in  Supreme  Court,  9  1534. 
practice,  see  State  Practice, 
priority  cases  where  a  party,  9  1702. 
records,  copies  as  evidence,  9  275. 
statutes,  see  State  Laws, 
suit  against,  llth  Amend.  Const.,  9  3. 

STATE  COURTS, 

answer,   differences  in   federal   practice,  1 961. 

appeals  from  decisions  of,  time  for,  9  1656. 

appellate  federal  review  only  obtainable  by  writ  of  error,  1 1602. 

bonds  in,  to  be  preserved  on  removal  of  cases,  9  216. 

concurrent  jurisdiction  with  federal  court,  99  90,  93. 

court  records,  evidence  of,  9  274. 

exclusive  jurisdiction  of  federal   court,  9  91. 

injunction,  interlocutory,  not  to  issue  in,  against  national  banks,  f  1117. 

staying  of  proceedings,  9  1108. 
jurisdiction, 

concurrent  with  district  court,  9  W. 

criminal  cases,  9  1205. 

provisional  remedies  of,  preserved  on  removal  of  ease*,  |  216. 
records,  evidence  of,  9  274. 


1196  INDEX. 

STATE  COURTS  (Continued). 

removal  of  causes  from,  see  Removal  of  Causes,  ch.  9,  and  Removal  from 

State  Court  by  Writ  of  Error,  ch.  74. 

time  for  reviewing  decisions  of,  in  United  States  Supreme  Court,  §  1656. 
•writ  of  error,  only  appellate  method  of  federal  review,  §  1602. 
writ  of  error,  time  for,  §  1656. 

STATE  LAWS, 

amount  in  controversy,  do  not  control,  §  180. 

appellate  jurisdiction  Supreme  Court  where  Conetitution  claimed  to  be  con- 
travened, §  1557. 

attachment  laws,  adoption  of,  §  481. 
construction  of,  followed,  §  482. 

conformity  of  procedure  at  law  to,  see  Conformity,  ehs.  15,  19. 

criminal,  where  adopted  in  federal  courts,  §  1203. 

depositions  to   perpetuate   testimony   under,   when    admissible   in   federal 

courts,  §  388. 
taking  of,  in  mode  prescribed  by  state  laws,  §  389. 

evidence  of,  §  274. 

garnishment  laws,  adoption  of,  §  480. 

hearing  application  for  injunction  against  enforcement,  §  1110. 

injunction  against  enforcement,  §  1109. 

penal,  where  adopted  in  the  federal  courts,  §  1204. 

perpetuation  of  testimony  under,  depositions  when  admissible  in   federal 
courts,  §  388. 

receivers  manage  properties  according  to,  §  1081. 

removal  by  writ  of  error  decision  in  state  court  upholding,  when  claimed 
repugnant  to  federal  authority,  §  1606. 

witnesses,  competence  of,  determined  by,  I  330. 

STATE  PRACTICE, 

adaption  of,  in  Federal  law  actions,  see  Conformity,  §  7. 
differences  from  federal  practice,  §  10. 
bill  in  equity,  §  691. 
complaint  at  law,  §  470. 

STATEMENT, 

agreed  as  to  record  on  appeal,  Eq.  R.  77,  §  1671. 
evidence  in  record,  Eq.  R.  75,  §  1671. 

further  and  particular  in  pleading  may  be  required,  Eq.  R.  20,  ch.  41, 
§§812,   967. 

STATEMENT  ON  APPEAL,  court's  approval  of,  Eq.  R.  75,  §  1671. 
be  filed  in  offic*  of  clerk,  Eq.  R.  75,  §  1671. 

STATEMENT  OP  THE  CASE.  §  696. 


INDEX.  111)7 

STATUTES, 

see  also  Federal  Laws  and  State  Laws. 
evidence  of,  §§  271,  273. 

removal  by  writ  of  error  to  state  court  of  rfpoiMon  against  right,  title, 
privilege,  or  immunity  claimed  under  federal,  i  Itiu7. 

STATUTES  OF  LIMITATIONS, 
capital  offenses,  §  231. 
civil  rights,  conspiracy  against,  §  249. 
claims  against  United  States,  §  243. 
copyrights,  5  S  241,  251. 
court  of  claims,  §  1433. 
crimes  under  internal  revenue  laws,  §  235. 
crimes  under  revenue  and  slave  trade  laws,  S  -34. 
criminal  cases,  §  1207. 
customs  laws,  §§239,  240. 
duties,  §§  239,  240. 
employers'  liability  act,  §  248. 
enemy,  trading  with,  $  1721. 

forfeiture  and  damage  suits  for  false  claims  against  United  States,  S  242. 
forfeiture  or  penalty  under  copyright  laws,  {  241. 
general  statement,  §  390. 
infringement  of  copyrights,  §  251. 
infringement  of  patent,  §  250. 
internal  revenue,  §§  234,  235. 
motion   to   dismiss,  §§  885,   891. 
national  bank  stockholder's  liability,  9  252. 
naturalization  laws,  offenses,  $  237. 
offenses  capital,  §  231. 

not  capital,  §  232. 

not  capital  unless  fleeing  from  justice,  §  233. 
patents, 

Indians,  §  247. 

infringement,  i  250. 

land,  §  245. 

railway,  §  246. 

wagon  road,  §  246. 

penalties  and  forfeitures  under  customs  rprenne  laws,  f  2S9. 
penalties  and  forfeitures  under  federal  laws,  §  238. 
revenue  laws,  §  235. 

•eduction  of  female  passengers  on  vessels,  §  238. 
settlements  for  customs  duties,  5  240. 
slave  trade,  §  234. 

stockholder's  liability  of  stockholders,  national  banks,  j  252. 
taxes,  recovery  of,  §  244. 
trading  with  tbe  enemy  act,  5  1721. 


1198  INDEX. 

STAY, 

execution,  pending  motion  for  new  trial,  f  633. 
term,  for  one,  state  laws  so  allow,  §  634. 

STENOGRAPHER, 

appointment — fees,  Eq.  B.  50,  §  1044. 

STIPULATION, 

reference  to  master,  effect  of,  §  1075. 
transfer  of  venue,  §  68. 

STOCKHOLDER 

bill  in  equity  of,  §  740. 
same,  old  and  new  rules  compared,  f  742. 
same,  purposes  of  the  rule,  §  742. 
liability  of  stockholders,  national  banks,  §  252. 
statutes  of  limitations,  §  252. 

STOCKHOLDER'S  BILL  against  corporation,  Eq.  B.  27,  eh.  29. 
STBIKE  OUT,  motion  to,  eh.  46. 

SUBJECT  MATTEB, 

partly  within  different  districts,  venue,  §  65. 

transfer  of,  to  give  jurisdiction  on  ground  diverse"  citizenship,  §  158. 

SUBORNATION  OF  PEBJUBY,  indictment  for,  §  1241. 

SUBPOENA, 

see  also  Subpoena  in  Equity. 

alias,  Eq.  B.  14,  §  794. 

another  district,  witnesses  in,  §  343. 

answer  compelled  by,  Eq.  R.  7,  §  790. 

bill  filed,  clerk  to  issue,  Eq.  B.  12,  §  793. 

claims,  cases  pending  in  departments,  witnesses,  §  354. 

clerk  to  issue  when  bill  filed,  and  not  before,  Eq.  R.  12,  §  661. 

contested  patent  cases',  witnesses  in,  §  353. 

criminal  cases,  §§  339,  340,  341,  342. 

of  witnesses  for  indigent  defendant,  §  345. 
defendant,  on  behalf  of  indigent,  for  witnesses,  §  345. 
defendant's  summons,  Eq.  B.  13,  §  797. 
defendant  to  answer  within  time  named  in,  Eq.  B.  16,  §  811. 
department,  claims  in,  witnesses,  §  354. 
government,  witnesses  for,  §  344. 

indigent,  compulsory  process  for  witnesses,  §  345. 
issue  of,  time  for  answer,  Eq.  R.  12,  §  810. 


INDEX.  1199 

SUBPOENA  (Continued). 

joint,  against  more  than  one  defendant,  Eq.  R.  12,  §  791. 

manner  of  serving,  Eq.  B.  13,  §  797. 

memorandum  at  bottom  thereof,  Eq.  R.  12,  §9  793,  810. 

not  executed,  provision  as  to,  Eq.  R.  ]4,  §  794. 

patent  cases,  contested,  witnesses  in,  §  353. 

process  to  compel  appearance,  Eq.  R.  7,  §  790. 

separately,  for  each  defendant  when  against  more  than  one,  Eq.  R.  12, 

§791. 

service  of,  Eq.  B.  13,  §  797. 

shall  constitute  proper  process,  etc.,  Eq.  R.  7,  §  790. 
to  contain  names  of  parties,  Eq.  R.  12,  §  791. 
to  issue  when  bill  filed  and  not  before,  Eq.  R.  12,  §  661. 
United  States,  on  behalf  of,  for  witnesses,  §  344. 
witnesses,  see  that  heading,  oh.  12. 

witnesses  under  act  establishing  bureau  of  war  risk  insurance.  8  361. 
when  returnable,  Eq.  R.  12,  §  664. 

SUBPOENA  DUCESTECUM  TO  REGISTER  OF  LAND  OFFICE,  §  298. 

SUBPOENA  IN  EQUITY, 

see  also  Process  in  Equity  and  Service,  ch.  34. 
alias,  §  794. 
form  of,  §  791. 

return  of,  §  799. 
issue  of,  §  791. 
manner  of  service  of,  §  797. 
mesne  process,  is  the,  §  790. 
precipe  for,  §  792. 

process  in  equity,  is  the,  §§  790,  793. 
return  of,  §  791. 

form  of,  §§  798,  799.  « 

time  for,  §§664,  791. 
service  of,  by  whom  made,  §§  524,  798. 

manner  of,  §§  525,  797. 
summons  in  equity,  is  the,  §  790. 
time  for  return,  §§  664,  791. 

SUBSTITUTED  SERVICE,  |  66. 

attachment  not  basis  for,  in  federal  court,  §  483. 
publication   of  summons,  §§  66,  526. 

SUBSTITUTION  of  proper  parties  by  reviver,  Eq.  R.  45,  §  763* 

SUFFICIENCY, 

defensive  pleading  at  law,  §  544. 

of  defense,  how  tested,  Eq.  R.  33,  ch.  46.  5  968. 


1200  INDEX. 

SUITS, 

against  a  state  when  not  permitted,  llth  Amend.  Const.,  §  3. 

papers  filed,  process  issued,  etc.,  to  be  noted  on  equity  docket,  Eq.  R.  3, 

Appendix. 

rules  governing  (see  Equity  Rules  and  Index  in  Appendix)  §  58. 
to  execute  trusts  of  will — heir  as  party,  Eq.  R.  41,  §  722. 

SUITS  IN  EQUITY, 
see  Equity  Suits. 

SUMMARIES, 

action  at  law,  ch.  15. 

courts,  §  4. 

equity,  eh.  25. 

federal   courts,  §  4. 

jurisdiction  federal  courts,  §  4. 

law,  eh.  15. 

proceedings  in  equity,  eh.  25. 

SUMMONS,  publication,  §§  66,  526. 

SUMMONS  IN  EQUITY, 

see  also  Subpoena  in  Equity,  ch.  34. 
form  of,  §  791. 

return  of,  §§  798,  799. 
issue  of,  §  791. 

manner  of  service  of,  §§  525,  797. 
precipe  for  subpoena,  §  792. 
return  of,  §§  798,  799. 
service  of,  by  whom  made,  §§  524,  796. 

manner  of,  §  797. 
subpoena  is,  §  790. 
time  for  return,  §§  664,  791. 

SUNDAYS, 

and  holidays — computation  of  time,  Eq.  R.  80,  Appendix, 
clerk's  office  not  open,  E"q.  R.  2,  Appendix, 
computation  of  time,  Eq.'R.  80,  Appendix. 

SUPEHSKDJ5AS, 
bond, 

Rule  13  C.  C.  A.  Appendix, 
bond,  form  of;  8th  Circuit,  Appendix. 

Addenda  Rule  45  C.  C.  A.  Appendix, 
writ  of  error,  §  1666. 

SUPPLEMENT,  Little  and  Brown's  evidence,  §  272. 


INDEX.  1201 

SUPPLEMENTAL  BILL,  Eq.  B.  34,  5  770;  Eq.  B.  35,  §  777. 
SUPPLEMENTAL  MATTER  in  amended  pleading,  Eq.  E.  19,  5  760. 

SUPPLEMENTAL  PLEADING, 

answer  in  equity,  §  966.  . 

bill  in  equity,  §  770. 
notice  of,  Eq.  B.  34,  ch.  32. 
when  may  be  filed,  Eq.  B.  34,  ch.  32. 

SUPPLIES,  lien  on  vessel  for,  §  1740. 

SUPREME  OOUBT,  ch.  72. 

actions  at  law  in,  issues  of  fact,  §  1534. 

adjournments  of,  §  1533. 

admission  to  practice  before,  §  1532. 

aliens,  suits  between  a  state  and,  §  1534. 

ambasssadors,  suits  against  in,  §  1534. 

appeals  to,  from  circuit  courts  of  appeal,  time  for,  5  1655. 

appeals  to,  from  district  court,  time  for,  §  1652. 

appellate  jurisdiction,  «ee  Appellate  Jurisdiction  of  Supreme  Court,  ch.  73. 

assistant  marshal,  §  1530. 

associate  justices,  order  of  precedence,  §  1530. 

bond,  of  clerk,  §  1530. 

certification  to,  by  circuit  court  of  appeals,  9  1678. 

chief  justice  of,  9  1530. 

citizens,  suits  between  a  state  and,  9  1534, 

clerk, 

bond  of,  9  1530. 

liability  for  misfeasance  of  deputy,  9  1530. 
consul,  a  party  in,  9  1534. 

copies  of  lost  or  destroyed  records  as  evidence,  9  282. 
death  of  .party  pending  appeal  to,  9  1692. 
decisions  of,  9  1531. 
deputy  clerks,  9  1530. 

domestics  of  ambassadors,  suits  involving,  9  1534. 
duties  of  marshal,  9  1530. 
duties  of  reporter,  9  1531. 
exclusive  jurisdiction  of,  9  1534. 
fact,  issues  of,  in,  9  1534. 

if  appeal  lies  to,  rehearing  not  granted  after  term,  Eq.  R.  69,  9  1160. 
issues  of  fact  in,  9  1534. 
jury  for  issues  of  fact  in,  9  1534, 
judges,  9  1530. 
jurisdiction, 

exclusive,  9  1534. 

original,  9  1534. 

Manual— 7« 


1202  INDEX. 

SUPREME  COURT    (Continued). 

law  actions,  issues  of  fact,  in,  §  1534. 

mandamus  and  prohibition,  §  1534. 

marshal,  §  1530. 

messengers,  §  1530. 

misfeasance  of  deputy  clerk,  liability  of  clerk  for,  §  1530. 

original  jurisdiction,  issues  of  fact,  §  1534. 

party, 

ambassador,  as,  in,  §  1534. 

citizens  as,  in,  §  1534. 

consul  as,  in,  §  1534. 

domestics  of  ambassadors  to,  §  1534. 

public  minister  as,  in,  §  1534. 

eervants  of  ambassadors  as,  in,  §  1534. 

etate  as,  §  1534. 

vice-consul  as,  §  1534. 
printing  of  record  on  appeal  to,  §  1673. 
procedure, 

on  appeal  from  Alaska  district  court,  §  1679. 
Hawaii  Supreme  Court,  §  1680. 
Philippine  Islands  Supreme  Court,  §  1681. 
Porto  Rico  Supreme  Court,  §  1680. 
prohibition  and  mandamus,  §  1534. 
public  ministers,  suits  against,  in,  §  1534. 
quorum,  §  1530. 

reduction  and  preparation  of  record  on  appeal  to,  §  1670. 
reports,  §  1531. 
reporter,  §  1531. 
rules,   Appendix,  p.   817   et  s0q. 

table  of,  Appendix,  p.  1034. 
salary, 

assistant  marshals,  §  1530. 

justices,  §  1530. 

marshal,  §  15  30; 

reporter,  §  1531. 

servants  of  ambassadors  or  other  public  ministers,  §  1534. 
special  terms,  §  1533. 
state  as  a  party  in,  §  1534. 
table  of  rules,  Appendix,  p.  1034. 
terms,  §  1533. 
time  for  appeal  to,  from  circuit  court  of  appeals,  §  1655. 

to,  from  district  court,  §  1652. 

transcript  in,  use  of  circuit  court  of  appeals  record  as  part  of,  §  1673. 
trial  of  issues  of  fact  in,  §  1434. 


INDEX.  1203 

SUPREME  COURT    (Continued), 
vacancy  in,  §  1530. 
Yice-consul  as  a  party  in,  §  1534. 
women  may  practice  before,  §  1532. 
writ  of  error,  see  that  heading,  ch.  76, 
writ  of  mandamus,  §  1534. 
writ  of  prohibition,  §  1534. 
writs,  power  to  issue,  §  1100. 

SURVIVAL  OF  LAW  ACTION,  §  663. 

T. 

TABLE  OF  COSTS, 

promulgated  by  Supreme  Court  contained  in  Rule  27  C.  C.  A.  Appendix. 
Rule  29  C.  C.  A.  (4th  Circuit)  Appendix. 

TABLES  OF  STATUTES,  rules,  etc.,  Appendix,  p.   1023  et  seq. 
TAKING  EXCEPTIONS,  trial,  lav  actions,  §  596. 
TALESMEN,  petit  juries,  §  59L 

TARIFF  LAWS, 

see  also  Revenue  Laws  and  Customs, 
continuances  of  suits  under,  §  566. 

TARIFFS,  giving  rebate,  prosecution  for  failure  to  file,  venue,  $  80. 
TAXABLE  COSTS  AND  FEES,  §  401. 
TAXATION,  costs,  verification  of  bill,  §  403. 

TAXES, 

injunction  does  not  issue  against  assessment,  §  1118. 
statutes  of  limitations  for  recovery  of,  §  244. 
venue,  9  76. 

TEMPORARY  RESTRAINING  ORDER, 

see  Restraining  Order  and  Injunction,  §§  1102,  1105,  1106,  1117. 
and  preliminary  injunctions,  Eq.  R.  73,  §  1103  et  ieq. 
to  be  filed  in  office  of  clerk,  Eq.  R.  73,  9  1106. 

TENNESSEE,  districts,  terms  and  places  of  holding  court,  §  107,  Jud.  Code, 
Appendix. 


1204  INDEX. 

TEEM, 

altering,  district  court  does  not  affect  proceedings,  §  51. 

awarding   process,   commissions,   orders,   etc.,   by   judge   at  chambers,   etc.. 

in,  Eq.  E.  1,  §  822. 

bill  of  review  for  evidence  discovered  after,  §  1180. 
circuit  court  of  appeals,  Eule  3  C.  C.  A.  Appendix,!  1472. 

Bule  36  C.  C.  A.  (9th  Circuit)  Appendix, 
continuances  beyond,  §  1032. 
court,  §  50. 
decree  after,  §  1033. 
district   attorney's,  §  33. 
district  court,  see  Terms  of  District  Court,  eh.  5,  Jud.  Code,  Appendix. 

altering  does  not  affect  proceedings,  §  51. 

special,  §  51. 

execution  stay  of,  for  one  term  when  state  law  so  allows,  §  634. 
•   marshal  Dist.  Ct.,  §  29. 
orders,  decrees,  etc.,  of  court  to  be  entered  in  equity  journal,  Eq.  E.  3, 

Appendix. 

rehearing  not  granted  after,  if  appeal  lies,  Eq.  E.  69,  §  1160. 
Supreme  Court,  §  1533. 

TEEMS  OF  DISTEICT  COUET, 

Alabama,  §  70,  Jud.  Code,  Appendix. 

Arkansas,  §  71,  Jud.  Code,  Appendix. 

Arizona,  Act  Oct.  3,  1913,  ch.  17,  following  §  71,  Jud.  Code,  Appendix. 

California,  §  72,  Jud.  Code,  Appendix. 

Colorado,  §  73,  Jud.  Code,  Appendix. 

Connecticut,  §  74,  Jud.  Code,  Appendix. 

Delaware,  §  75,  Jud.  Code,  Appendix. 

Florida,  §  76,  Jud.  Code,  Appendix. 

Georgia,  §  77,  Jud.  Code,  Appendix. 

Idaho,  §  78,  Jud.  Code,  Appendix. 

Illinois,  §  79,  Jud.  Code,  Appendix. 

Indiana,  §  80,  Jud.  Code,  Appendix. 

Iowa,  §  81,  Jud.  Code,  Appendix. 

Kansas,  §  82,  Jud.  Code,  Appendix. 

Kentucky,  §  83,  Jud.  Code,  Appendix. 

Louisiana,  §  84,  Jud.  Code,  Appendix. 

Maine,  §  85,  Jud.  Code,  Appendix. 

Maryland,  §  86,  Jud.  Code,  Appendix. 

Massachusetts,  §  87,  Jud.  Code,  Appendix. 

Michigan,  §  88,  Jud.  Code,  Appendix. 

Minnesota,  §  89,  Jud.  Code,  Appendix. 

Mississippi,  §  90,  Jud.  Code,  Appendix. 

Missouri,  §  91,  Jud.  Code,  Appendix. 


INDEX.  1205 

TERMS  OF  DISTRICT  COURT   (Continued). 
Montana,  §  92,  Jud.  Code,  Appendix. 
Nebraska,  5  93,  Jud.  Code,  Appendix. 
Nevada,  §  94,  Jud.  Code,  Appendix. 
New  Hampshire,  §  95,  Jud.  Code,  Appendix. 
New  Jersey,  §  96,  Jud.  Code,  Appendix. 
New  Mexico,  §  13,  Act  June  20,  1910,  ch.  310  following  §  96,  Jud.  Code, 

Appendix. 

New  York,  §  97,  Jud.  Code,  Appendix. 
North  Carolina,  §  98,  Jud.  Code,  Appendix. 
North  Dakota,  §  99,  Jud.  Code,  Appendix. 
Ohio,  §  100,  Jud.  Code,  Appendix. 
Oklahoma,  §  101,  Jud.  Code,  Appendix. 
Oregon,  §  102,  Jud.  Code,  Appendix. 
Pennsylvania,  §  103,  Jud.  Code,  Appendix. 
Rhode  Island,  §  104,  Jud.  Code.  Appendix. 
South  Carolina,  §  105,  Jud.  Code,  Appendix. 
South  Dakota,  §  106,  Jud.  Code,  Appendix. 
Tennessee,  §  107,  Jud.  Code,  Appendix. 
Texas,  §  108,  Jud.  Code,  Appendix. 
Utah,  §  109,  Jud.  Code,  Appendix. 
Vermont,  §  110,  Jud.  Code,  Appendix. 
Virginia,  §  111,  Jud.  Code,  Appendix. 
Washington,  §  112,  Jud.  Code,  Appendix. 
West  Virginia,  §  113,  Jud.  Code,  Appendix. 
Wisconsin,  §  114,  Jud.  Code,  Appendix. 
Wyoming,  §  115,  Jud.  Code,  Appendix. 

TERRITORIAL   CITIZENS,  are  not  citizens  so   as  to   base  jurisdiction  on 
diverse  citizenship,  9  142. 

TERRITORIAL  COURTS, 

district  court's  jurisdiction  of  cases  transferred  from,  S  HI. 
Supreme  Court's  jurisdiction,  §  1561. 
writ  of  error  to,  99  1679-1685. 

TERRITORIAL  JURISDICTION,  see  Venne  of  Actions,  ch.  4. 
limits  of,  9  60. 
must  be  pled,  9  10. 

objection  that  defendant  is  not  sued  in  his  district,  how  made,  f  86. 
territorial  jurisdiction  may  be  waived,  9  86. 

TERRITORIAL  RECORDS,  transfer  of,  9  54. 


1206  INDEX. 

TERRITORY, 

diverse  citizenship,  act  a  citizen,  §  143. 

extradition    of    fugitive    from    foreign    under   control    of   United    States, 

§  1303. 
Supreme    Court   jurisdiction    where   judgment    rendered   after    admission, 

§  1561. 
writ  of  error  to,  §5  1679-1685. 

TESTIMONY,  see    also    Evidence,  Witnesses. 

before  commissioners,  court  of  claims,  §  1434. 

competence  of  witness,  see  Competence. 

Congress,  immunity  of  witness,  §  337. 

contempt  of  court  for  refusal  of  witness  to  give  testimony  before  commis- 
sioner, examiner,  etc.,  Eq.  R.  52,  §  390. 

depositions,  see  that  heading,  ch.  13. 

to  be  used  in  foreign  country,  §  394. 

enforcing  of  witnesses,  §§  346,  352,  355,  367. 

expert,  not  to  be  substituted  by  bill  of  particulars,  {  923. 

how  stated  in  record  on  appeal,  Eq.  R.  75,  §  1671. 

immunity  of  witnesses,  §  335. 

interrogatories  not  to  obtain,  §§  948,  949. 

may  be  taken  down  by  stenographer,  Eq.  R.  50,  §  1044. 

no  further  by  deposition  to  be  taken  after  ease  goes  on  trial  calendar, 
except,  etc.,  Eq.  R.  56,  §  677. 

notice  of  taking  before  master  or  examiner,  Eq.  R.  53,  §  391. 

of  expert  witnesses  in  patent  and  trademark  cases,  Eq.  B.  48,  §§  1041, 
1045. 

of  witnesses  before  examiner  to  be  read  to  him,  Eq.  R.  51,  §§  381,  382. 

perpetuation  of,  §  388. 

to  be  signed  by  witness,  Eq.  R.  51,  §  382. 

usually  to  be  taken  in  open  court  at  trial,  Eq.  R.  46,  §§  279,  1040,  1043. 

witnesses,  see  that  heading,  ch.  12. 

TESTING  SUFFICIENCY  OF  DEFENSE,  Eq.  B.  33,  ch.  46,  §  968. 

TEXAS,    districts,    terms    and    places    of    holding    court,  §  108,    Jud.    Code, 
Appendix. 

THINGS  AS  EVIDENCE,  under  Alaska  prohibition  laws,  §  313. 
THIRD  PARTY  CLAIM,  attachment,  §  493. 

TIME, 

answer,  Eq.  R.  12,  §§  665,  810,  963. 

answer  after  motion  to  dismiss  be  denied,  Eq.  B.  29,  §§  885,  900. 

answer  in  equity,  ch.  44. 


INDEX.  1207 

TIME  (Continued). 

answer  in  equity  (continued). 

after  overruling  motion  to  dismiss,  §  667. 

amended  bill,  §  668. 

answer   interrogatories,   Eq.   R.   58,  §§  670,   940. 
appeal,  ch.  75. 

circuit  court  of  appeals,  to  Supreme  Court,  §  1655. 

court  of  claims,  §  1560. 

court  of  customs  appeals,  §  1455. 

district  court  to  circuit  court  of  appeals,  §  1653. 
from  interlocutory  orders,  §  1654. 
to  Supreme  Court,  §  1652. 
bill  of  review,  §  1181. 
calendar,  see  that  heading. 

equity,  §  676. 

computation  of — Sundays  and  holidays,  Eq.  R.  80,  Appendix, 
counterclaim  in  equity,  §  963. 

reply  to,  §  674. 

service  on  other  defendants,  §§  672,  1010. 
default, 

equity,  §  811. 

law,  §  542. 

decree  pro  confesso,  ch.  35,  §  810. 
defendant's  depositions,  Eq.  K  47,  ch.  48. 
defendant  to  plead,  Eq.  R.  12,  16,  §§  665,  810,  963. 
defensive  pleading, 

equity,  ch.  36,  §  810. 

law,  ch.  19,  §  541. 

depositions,  see  that  heading,  ch.  13,  §  1022. 
depositions,  Eq.  R.  47,  ch.  48. 

extending,  §  1023. 

equity,  §§  372,  663,  671,  677. 

law,  §  371. 
discovery,  Eq.  R.  58,  §§  670,  940. 

equity,  §§  662,  670. 

law,  §  571. 

enlargement  of, 

for  full  compliance  with  decree,  Eq.  R.  8,  |§  473,  1112,  1140,  1143. 
exceptions  at  trial,  §  597. 

exceptions  to  master's  report,  Eq.  R.  66,  §  1070. 
extending  for  depositions,  §  1023.  '    j» ': 

extradition,  §  1310. 

filing  pleading,  §  52,  see    also    Pleading,  Time  for. 
habeas  corpus,  return  of  writ,  §  1336. 
hearing,  see  that  heading. 

motion  to  dismiss,  §  666. 


1208  INDEX. 

TIME  (Continued). 

holding  court  in  the  several  districts,  ch.  5,  Jud.  Code,  Appendix. 

interrogatories,  Eq.  R.  58,  §§  670,  940. 

interrogatories  in  equity,  §§  662,  670. 

intervention,  Eq.  R.  37,  §  730. 

issuance  of  process  in  equity,  §§  661,  791. 

issue  in  equity,  §§  669,  675. 

issuing  process,  §  52,  see    also    Process,  Time  for. 

motion  to  dismiss,  §  665. 

hearing  of,  §  666. 

motion  to  strike  out  defense  in  equity,  ch.  46. 
motions,  Eq.  R.  1,  §  822. 

on  expiration  of,  for  depositions,  case  on  trial  calendar,  Eq.  R.  56,  §  677. 
plaintiff's  depositions,  E'q.  R.  47,  ch.  48. 
pleading,  filing  of,  §  52,  see    also    Pleading,  Time  for. 
precipe  for  subpoena  in  equity,  §§  661,  791. 
process  in  equity,  §§  661,  791. 

issuing  and  returning,  §  52,  see  also  Process,  Time  for. 

return  of,  §§  664,  691. 

reinstatement  case  on  equity  calendar,  §  679. 
reply  in  equity,  §§  674,   1010. 
return  of  subpoena,  Eq.  R.  12,  §  664. 
returns, 

appeals,  §  1675. 

habeas  corpus  writ,  §  1336. 

process  in  equity,  §§  52,  664,  691,  791. 

writ  of  error,  §  1675. 
service, 

counterclaim  on  other  defendant's  in  equity,  §  672. 

process  in  equity,  §§  664,  691,  791. 
setting  for  trial,  §  1030. 
subpoena,  Eq.  R.  12,  §  793. 
subpoena  in  equity,  §§  661,  664,  691,  791. 

subpoena  to  issue  when  bill  is  filed  and  not  before,  Eq.  R.  12,  §  661. 
taking  exceptions,  law  actions,  §  597. 
writ  of  error, 

circuit  court  of  appeals  to  Supreme  Court,  §  1655. 

district  court  to  circuit  court  of  appeals,  §  1653. 

district  court  to  Supreme  Court,  §  1652. 

return  of, §  1675. 

Btate  court  to   Supreme  Court,  §§  1656,   1657. 

TIME  AND  PLACES  OF  HOLDING  DISTRICT  COURTS,  ch.  5,  Jud.  Code, 
Appendix. 


INDEX.  ii:oy 

TITLE, 

clouded,  venue,  §  66. 

removal  by  writ  of  error  state  court  decision  against,  5  1607. 

TORT-FEASORS,  no  separable  controversy  in,  §  194. 

TRADING  WITH  THE  ENEMY, 
Canal  Zone,  §  1720. 
jurisdiction    district   court,  §  1719. 
limitations,  suit  by  alien  enemy,  §  1721. 
Philippine   Islands,  §  1720. 
suits  relating  to  patents,  trademarks,  copyrights,  etc.,  Si  1722,  1723. 

TRADEMARK  CASES, 

cross-examination  of  witnesses,  Eq.  R.  48,  §|  1041,  1045. 

expert  witnesses  in,  §§  1041,  1045. 

testimony  of  expert  witnesses,  Eq.  R.  48,  §§  1041,  1046. 

TRADEMARKS,  copies  of  patent  office  records  as  evidence,  §  303. 
trading  with  the  enemy  act,  suits  under,  §§  1722,  1723. 

TRANSCRIPT, 

appeal  and  error,  f  1669a. 

cost  of,  to  be  advanced  by  party  ordering,  Eq.  R.  50,  9  1044. 

of  evidence  before  examiner  not  to  include  argument,  Eq.  R.  51,  9  3*2 

on  appeal,  §  1669  et  seq. 

indicating  portions  of,  Eq.  B.  75,  9  1671. 
procedure  after  it  reaches  appellate  court,  9  1685. 

supplemental,  correction  of,  omissions  by,  Eq.  B.  76,  9  1671* 
record,  circuit  court  of  appeals, 

Rule  26  C.  C.  A.  (8th  Circuit)    Appendix. 

Addenda  Rule  45  C.  C.  A.  Appendix. 

TRANSFER, 

by  stipulation,  venue,  9  68. 

from  equity  to  law  side,  9  840. 

of  action  at  law  erroneously  begun  as  suit  in  equity.  Eq.  B.  22,  ch.  37.  |  9. 

of  subject  matter  to  create  diversity  of  citizenship,  9  156. 

of  territory,  how  affects  venue,  9  69. 

TRANSFERRED  CASES  FROM  TERRITORIAL  COURTS^ 
jurisdiction  district  court  over,  9  HI. 

TRANSFERRING  TO  LAW  SIDE,  ch.  37. 
TRANSLATIONS,  Rule  15  C.  C.  A.  Appendix. 


1210  INDEX. 

TRANSPORTATION,  extradited  person,  to  the  United  States,  §  1312. 

TRAVERSE,  answer  as,  ch.  44;  court  of  claims,  §  1434. 

TREASURY  DEPARTMENT, 

books  and  proceedings  in  embezzlement  suits,  §  293. 

evidence,  §  293. 

records  in  suits  against  delinquents,  copies  as  evidence,  §  291. 

TREATY, 

appeal  to  Supreme  Court  where  drawn  in  question,  §  1556. 

claims  under,  no  jurisdiction,  court  of  claims,  §  1432. 

extradition  provisions  continue  during  existence  of,  §  1311. 

federal  question  arising  under,  §  125. 

removal  by  writ  of  error  decision  in  state  court  against  validity,  §  1605. 

removal  by  writ  of  error  to  state  court  of  decision  against  right,  title, 

privilege,  or  immunity  claimed,  independence,  §  1607. 
removal  case  involving  question  under;  §  126. 

TRIAL,, 

actions  at  law,  see  Law  Actions,  ch.  22* 

Supreme  Court,  §  1534. 
admissibillty   of   evidence,   equity,  §  1043. 

affidavits  of  experts  in  patent  and  trademark  cases,  §§  1041,  1045. 
amendment  of  verdict  at  law,  §  612. 
calendar,  ch.  49,  §  1030. 
calendar  on  expiration  of  time  for  depositions,  case  goes  on,  Eq.  R.  56, 

§677. 

challenges  to  jury,  §  593. 
charge  to  jury,  §  599. 
conclusion  of,  in  new  term,  §  5L, 
conduct  of,  at  law,  §  598. 
constitutional  jury,  twelve  men,  §  583. 
continuance  after  case  on  calendar,  §  1032. 
costs  and  fees,  see  that  heading,  ch.  14. 
criminal  cases,  see  Criminal  Procedure,  ch.  59-62,  §  1369. 
demand  to  admit  execution  and  genuineness  of  documents,  §  940. 
depositions,  see  tnat  heading,  eh.  13. 

equity,  §  1041. 

dismissal  by   plaintiff,  §  1130. 
diverse  citizenship,  want  of,  appearing  on,  i  160. 
drawing  jury,  §  588. 
equity  suits,  see  that  heading,  ch.  50. 

jury  in,  §  862. 
evidence,  see  that  heading,  ch.  11. 

admissibility   in   equity,  §  1043. 


INDEX.  1211 

TRIAL    (Continued), 
exceptions, 

taking  of,  §  596. 

time  for  taking,  §  597. 

excluding  jurors,  penalty  under  civil  rights  act,  §  586. 
execution,  see  that  heading, 
exemptions  of  jury,  §  584. 

after  term  of  service  in  a  year,  §  587. 

civil  rights  acts,  §  585. 

expert   witnesses   patent   and   trademark   ease*.  §5  1-041,    1045. 
extradition,  surrender  of  prisoner  for  a  fair  trial,  f  1308. 
equity  suits,  §  1040. 
form  and  effect  of  verdict,  §  611. 
impaneling  jury,  §  589. 
infringement  suits,  §  1046. 
instructions  to  jury,  §  599. 
interrogatories  (equity),  §  940. 
issuance  of  venire,  §  590. 
issues  of  fact  in  Supreme  Court,  §  1534. 
judge,  trial  at  law,  §§  459,  594. 
judgment  at  law,  see  that  heading,  ch.  24. 
jury  in  equity,  §  862. 
jury,  see  that  heading. 

law  actions,  §§458,  581,  593. 

right  of  accused  to,  §  1365. 
law  actions,  see  that  heading,  ch.  22. 
method  of,  al  law,  §§  581,  582. 
mode  of  proof, 

at  law,  §  595. 

in   equity,  §  1042. 
motion  for  new  trial  at  law,  §  614. 
petit  jury,  see  Jury,  §§  581,  593. 
pleading,  see  that  heading, 
proof  in   actions   for  infringement,  §  1046. 

mode  of,  in  equity,  §  1042. 

at  law,  §  595. 

removal  for,  of  offenders  against  United  States,  9  1260. 
return  of  venire  of  jury,  §  590. 
rulings,  exceptions  to,  §§  596,  597. 

taking  of,  §  596. 

time  for  taking,  9  597. 
setting  for,  ch.  49. 
special  juries.  §  592* 

verdict,  §  610. 
statutes  of  limitations.  SOP  that  heading,  en.  10. 


1212  INDEX. 

\ 
TRIAL    (Continued). 

stenographer,  equity  suits,  §  1044. 

Supreme  Court,  issues  of  fact,  §  1534. 

taking  exceptions,  §  59&. 

talesmen  petit  juries,  §  591. 

terms  of  court,  see  Terms. 

testimony  to  be  taken  in  open  court,  Eq.  E.  46,  §§270,  1040,  1043. 

time  for  taking  exceptions,  §  597. 

venire,  issuance  and  return,  §  590. 

venue,  see  that  heading,  eh.  4, 

verdict,  effect  of,  §  611. 
form  of  general,  §  611. 

witnesses,  see  that  heading,  ch.  12. 

experts  in  patent  and  trademark  cases,  §  1045. 

TEIAL  CALENDAB, 
in  equity  suits,  §  670. 

TEIALS,  SEPAEATE,  court  may  order  separate  trials  of  joint  actions,  Eq.  E. 
26,  ch.  30. 

TBUSTEE  AS  PAETT,  Eq.  B.  37,  §  710. 
TBUSTEES,  diverse  citizenship  of,  §  150. 
TRUSTS  OF  WILL,  suit  to  execute,  Eq.  E.  41,  §  722. 

u. 

UNFAIE  COMPETITION,  counterclaim  for,  §  961. 

UNITED  STATES, 
see  also  Federal. 

attendance  of  witnesses,  enforcing,  §§  344,  354,  355,  357. 
no  bond  required  of,  on  appeal,  §  1665. 
subpoena  for,  on  behalf  of,  §§  342,  344. 
witnesses,  recognizance  of  in  criminal  cases  on  behalf  of,  §  342. 

UNLIQUIDATED  DAMAGES,  counterclaim  for,  §  985. 

UTAH,  districts,  terms  and  .places  of  holding  court,  §  109,  Jud.  Code,  Appendix. 


INDEX.  1213 

V. 

VACANCY, 

district  attorney,  §  33. 

district  judge's  office,  continuance,  fi  54. 

judge — continuances,  §  51. 

marshal's  office,  §  29. 

Supreme  Court,  §  1530. 

VACATION, 

awarding  process,  commissions,  orders,  rules,  etc.,  by  judge  at  clambers  in, 

Eq.  B.  1,  §  822. 
judgment  law  actions,  §  630. 

by  granting  new  trial,  §  633. 
orders,  §  53. 

VALUE,  averments  in  bill  other  than  of,  if  not  denied,  deemed  confessed, 
Eq.  E.  30,  5  964. 

VENIRE, 

for  jury,  §  590. 

VENUE,  see  Venue  of  Actions,  below. 

VENUE  OP  ACTIONS,  ch.  5. 
absent  defendant,  §  66. 
civil  suits,  in  general,  §  61. 
cloud  on  title,  §  66. 

condemnation,  insurrectionary  property,  I  7S. 
Comptroller  of  Currency,  injunction  against,  §  78. 
copyright  laws,  §  72. 

creation  of  new  district,  how  affects,  §  69. 
crimes  and  offenses,  §  75. 
criminal  prosecutions,  §  1207. 
defendant,  absent,  §  66. 
defendant  in  different  districts,  §  64. 
defendants,  part  of,  not  found,  §  74. 
diverse  citizenship,  cases  of,  §  158. 
embargo,  seizure  for,  §  79. 

enforcement  of  lien  upon  creation  or  transfer  of  district  or  territory,  |  70. 
federal  question,  cases  involving,  §  127. 
forfeitures  and  penalties  in,  §  76. 
forfeitures,  seizures  for,  §  79. 
form  of  plea,  §  86. 

fortifications,  injury  to,  prosecutions,  §  83. 
immigration  laws,  prosecutions  under,  §  85. 
infringement  of  patent,  §  71. 


1214  INDEX. 

VENUE   OP  ACTIONS    (Continued). 

injunctions  against  Comptroller  of  Currency,  f  78. 

insurrection,  seizure  for,  §  79. 

insurrectionary  property,  condemnation  of,  §  78. 

internal  revenue  and  taxes,  §  76. 

Interstate  Commerce  Commission,  suits  affecting  order  of,  §  82. 

intoxicating  liquors,  prosecutions  for  violation  of  postal  laws,  §  84. 

issue  as  to  district  of  suit  in  diversity  of  citizenship,  §  86. 

issue  as  to  federal  question,  form  of  plea,  §  132. 

jurisdiction  of  receiver  over  real  .property  outside  of  district,  §  67. 

lien  not  divested  by  creation  of  new  district  or  transfer  of  territory,  §  70. 

liens,  generally,  §  66. 

local  suit,  subject  matter  partly  within  several  states,  §  65. 

local  suit  against  defendant  in  different  district,  same  state,  §  64. 

motion  to  dismiss  for  defect  in,  §  86. 

new  district  created,  effect  of,  §  69. 

nonlocal  suits  in  district  of  more  than  one  division,  §  63. 

nonlocal  suits  in  state  of  more  than  one  district,  §  62. 

offenses  and  crimes,  §  75. 

part  of  defendants  not  found,  §  74. 

patent,  infringement  of,  §  71. 

penalties  and  forfeitures,  §  76. 

property,  condemnation  of  insurrectionary,  §  78. 

prosecutions  for  failure  to  file  rebate  tariffs,  §  80. 

real  property,  receivers'  jurisdiction  over,  outside  districts  in  circuit,  §  67. 

rebate,  prosecution  for  failure  to  file  tariff  giving,  §  80. 

receivers,  jurisdiction  over  real  property  outside  district  in  circuit,  §  67. 

revenue,  internal,  §  76. 

seizure,  embargo,  forfeiture,  insurrection,  §  79. 

sixteen  hour  law,  prosecutions  under,  §  81. 

stipulation,  transfer  by,  §  68. 

subject  matter  partly  in  different  districts,  §  65. 

tariffs  giving  rebate,  prosecution  for  failure  to  file,  §  80. 

taxes  and  internal  revenue,  §  76. 

territory,  transfer  of,  how  affects,  §  69.    . 

title  clouded,  §  66. 

transfer  by  stipulation,  $  68. 

transfer  of  territory,  how  affects,  §  69. 

VERDICT,  ch.  23. 

amendment  of,  §  612. 

criminal  case,  for  less  offense  than  charged,  §  1380. 

against  one  or  more  several  joint  defendants,  §  1381. 

qualified,  in  cases  of  murder  in  first  degree  or  rape,  §  1382. 
form  and  effect  of  general,  §  611. 
law  action,  §  461. 
special  verdict,  f  610. 


INDEX.  1215 

VERDICT  AND  JUDGMENT  in  criminal  cases,  ch.  M. 

VERIFICATION,  §  574,  see    also    Oaths, 
answer  in  equity,  §§  960,  965. 

bill — application  for  injunction,  Eq.  R.  73,  5  1103. 
bill  in  equity,  §§  698,  700. 
bill  of  costs,  §§,402,  403. 

bill  on  application  for  injunction,  Eq.  R.  73,  §  1103. 
bill  to  be  verified  by  oath  if  special  lelief  asked,  Eq.  R.  25,  §  700. 
clerk  of  court,  before,  Eq.  R.  36,  §  700. 
complaint  at  law,  §  474. 

of  pleadings,  officers  before  whom  taken,  Eq.  R.  36,  §  700. 
petition  for  rehearing  to  be  verified  by  oath,  etc.,  Eq.  R.  69,  §  1160. 
stockholder's  bill,  §  740. 

VERMONT, 

criminal  cases,  recognizance  of  witnesses,  §  341. 

districts,  terms  and  places  of  holding  court,  §  110,  Jud.  Code,  Appendix. 

VICE-CONSUL, 
see  also  Consul. 
Supreme  Court,  party  to  suit  in,  §  1534. 

VIRGINIA, 

districts,  terms  and  places  of  holding  court,  §  111,  Jud.  Code,  Appendix. 

VIVA  VOCE,  master  may  examine  persons  before  him,  Eq.  R.  65,  §  1063. 
VOUCHERS,  production  of,  required  by  master,  Eq.  R.  62,  §  1063. 

w. 

WAGON  ROAD,  patents,  statute  of  limitations,  §  246. 

WAR,  condemnation  land  for  military  purposes,  9  1727. 
trading  with  the  enemy  act,  see  that  heading,  §  1727. 

WARRANT, 

arrest  of  fugitive  from  foreign  country,  §  1300. 

searches  and  seizures  under  custom  law,  §  1705. 

•    - 

WAR  RECORDS,  copies  as  evidence  in  suits  against  delinquent*,  |  Wl. 
WAR  RISK  INSURANCE,  see  Bureau  of  War  Rink  Insurance,  |  1724. 
WARNING    ORDER,  §66. 


1216  INDEX. 

WASHINGTON,  districts  terms  and  places  of  holding  court,  §  112,  Jud.  Code, 
Appendix. 

WEST   INDIAN   ISLANDS,  appellate   jurisdiction,  3d  Cir.,  §  1508. 

WEST  VIRGINIA,  districts,  terms  and  places  of  holding  court,  §  113,  Jud. 

.    Code,  Appendix. 

»  * 

WHIPPING,  abolished,  §  1406. 

WHITE  SLAVE  TRAFFIC,  jurisdiction  district  court,  §  103. 

4* 

WILL,  execution  of  trusts  of,  heir  as  party,  Eq.  R.  41,  §  722. 

WISCONSIN,  districts,  terms  and  places  of  holding  court,  §  114,  Jud.  Code, 
Appendix. 

WITNESSES, 

accused  as  against  himself,  §  338. 

action  at  law,  §  460. 

affidavit  of  experts  in  patent  and  trademark  cases,  Eq.  R.  48,  §§  1041,  1045. 

anti-trust  law,  under,  §  335. 

anti-trust  law,  publicity  in  taking  depositions,  §  396. 
attendance, 

claim  cases  in  departments,  §  354. 

compelling  under  act  establishing  war  risk  insurance,  §  361. 

depositions  de  bene  esse,  §  378. 

to  be  used  in  foreign  country,  §  394. 
under  commission,  §§  385,  386. 
enforcing,  §§  344,  346,  352,  355,  358,  378,  386,  394. 
for  United  Staters,  §  344. 
income  tax  law,  §  358. 
interstate  commerce  act,  §  357. 
patent  cases,  §  352. 

attendance  before  commissioner,  master  or  examiner,  Eq.  R.  52,  §  390. 
before  examiners,  etc.,  cross-examination  of,  etc.,  Eq.  R.  49,  §  380. 
claim  cases  in  departments,  §§  354,  355. 

commerce   laws,   attendance  enforcing  under  interstate   commerce   act, 
§357. 

immunity  under,  §§  335,  357. 

testimony  enforcing  under  interstate  commerce  act,  §  357.   . 
compelling  attendance,  see  Attendance,  above, 
compensation  of,  for  attendance  before  commissioner,  master,  or  examiner, 

Eq.  R.  52,  §  390. 

competence,  anti-trust  laws  immunity,  §  335. 
Alaska  prohibition  laws,  §  331. 
commerce  laws,  immunity,  §  335. 


INDEX.  1217 

WITNESSES   (Continued). 

competence,  anti-trust  laws  immunity  (continued). 

Congress,  immunity,  §  337. 

criminal  cases,  immunity,  §  336. 
defendant,  §  338. 

customs,  revenue  laws,  §  333. 

defendant  in  criminal  cases,  §  338. 

determined  generally  by  state  laws,  §  330. 

immunity  of  witnesses,  §§  335,  336,  337.          |  • 

officers  and  informers  not  disqualified  in  suits  for  finea,  penalties,  or 
forfeitures,  §  334. 

perjury  does  not  disqualify,  §  332. 

revenue  law,  not  disqualified,  §  333. 

state  laws  determine,  §  330. 

testimony,  see  that  heading, 
compulsory  attendance,  §§  344,  346,  352,  355,  357,  358,  378,  386,  391 

process  criminal  cases,  §  339. 

for  United  States  district  attorney,  5  342. 
Vermont,  §  340. 

testimony,  §§  346,  352,  355,  357. 
Congress,  immunity  of  witnesses,  §  337. 
contempt,  court's  power  to  punish  for,  §  347. 
contempt  in,  refusing  to  appear  before  commissioner,  master  or  examiner. 

Eq.  E.  52,  §  390. 

costs,  on  depositions  to  be  advanced  by  party  calling,  Eq.  B.  50,  §  1044. 
court  of  claims,  §  1435. 
court  officer  not  entitled  to  fees  as,  §  419. 
criminal  cases,  compulsory  process  for,  §§  339,  340,  341,  342. 

defendant  as  a  witness,  §  338. 

immunity,  §§  335,  336. 

of  indigent  defendant,  §  345. 

recognizance  of,  §§  340,  341,  342. 
cross-examination  before  examiner,  Eq.  B.  54,  5  372. 

cross-examination  in  patent  and  trademark  case,  Eq.  R.  48.  §§  1041,  1045. 
cross-examination  on  deposition,  Eq.  B.  54,  §  372. 

cross-examination  where  no  notice  of  deposition  given,  Eq.  R.  54,  §  372. 
customs  laws,  not  disqualified  by  claiming  compensation  under,  §  333. 
defendant  in  criminal  proceedings,  §  338. 

subpoena  on  behalf  of  indigent,  §  345. 
department,  claim  cases  in,  subpoena,  §  354. 
depositions  of,  may  be  taken  when,  Eq.  B,  47.  ch.  48,  §  1040. 
depositions  of,  after  case  on  trial  calendar,  §§  1030,  1031. 
district,  subpoena  for  witnesses  in  another,  §  343. 
district  attorney,  recognizance,  §  342. 
enforcing  attendance,  see  Attendance,  above. 

Manual— 77 


1218  INDEX. 

WITNESSES   (Continued). 

expense  of  taking  depositions  of,  to  be  advanced  by  party  calling,  Eq.  B. 

50,  §  1044. 

experts  in  patent  and  trademark  cases,  §§  1041,  1045. 
extradition,  indigent  prisoners,  §  1306. 
fees  of,  §  418. 

claim  cases  in  departments,  §  356. 

criminal  examination,  United  States  liable  for  only  four  witnesses, 
§423. 

depositions  in  District  of  Columbia,  §  420. 

letters  rogatory  from  foreign  country,  §  421. 

mileage,  §§  348,  349. 

double  prohibited,  §  350. 

patent  cases,  §  353. 

prize  cases,  how  paid,  §  424. 

seamen  sent  home  to  give  testimony  in  criminal  pases,  §  422. 
fines,  suits  for,  officers  and  informers  not  disqualified  as,  §  334. 
forfeitures,  suits  for,  officers  and  informers  not  disqualified  as,  §  334. 
government,  recognizance  of,  §  342. 

subpoena  of  witnesses  for,  §  344. 
immunity  of,  an ti- trust  laws,  §  335. 

commerce  laws,  §  335. 

Congress  before,  §  337. 

criminal  eases,  §§  335,  336. 

letters  rogatory  need  not  incriminate1,  §  395. 
income  tax  law,  compulsory  attendance,  §  358. 
indictment  for  capital  crimes,  accused  entitled  to  compel,  §  1364. 
incompetent,  see  Competence  and  Immunity, 
incrimination,  see  Immunity. 

indigent  defendant,  subpoena  on  behalf  of,  §  345. 

informers  not  disqualified  in  suits  for  fines,  penalties,  or  forfeitures,  §  334. 
interrogatories,   written,   not   subject   to,  §  951. 
interstate  commerce  act,  enforcing  attendance  and  testimony  of,  §  357. 

immunity  of  witnesses  under,  §  335. 
letters  rogatory,  §§  393,  395,  421. 

list  of,  to  be  given  to  person  indicted  for  treason  or  capital  offense,  §  1363. 
may  be  examined  on  oath  by  master,  Eq.  E.  62,  §  1063. 
may  be  examined  orally  before  court,  or  cross-examined  before  examiner. 

etc.,  when  no  notice  of  deposition  given,  Eq.  E.  54,  §  372. 
mileage,  amount,  §§  348,  349,  350. 

double  prohibited,  §  350. 

officers  not  disqualified  in  suits  for  fines,  penalties  or  forfeitures,  §  334. 
oaths,  §  359. 
patent  cases,  enforcing  attendance  and  testimony  of,  §  352. 

fees  of,  in,  §  353. 

subpoena  for,  in  contested  cases,  §  351. 


INDEX. 

WITNESSES  (Continued). 

penalties  in  suits  for  officers  and  informers  not  disqualified  as,  §  334 
perjury  not  a  disqualification,  §  332. 
process  for,  see  Subpoena,  below, 
recognizance  in  criminal  cases,  §  340. 

in  Vermont,  §  341. 

for  United  States,  §  342. 
refusing  to  appear  before  commissioner,  master  or  examiner,  Eq.  R.  52, 

5390. 

refusing  to  sign  testimony,  Eq.  B.  50,  §  1044. 

revenue  laws,  not  disqualified  by  claiming  compensation  under,  §  333, 
state  laws  determine  generally  competence,  §  330. 
lubpoena,  another  district,  §  343. 

claim  cases  in  departments,  §  354. 

contested  patent  cases,  §  353. 

criminal  cases,  §§  339,  340,  341,  342,  345. 

government,  §  344. 

in  behalf  of  indigent  defendant,  §  345. 

patent  cases,  §  353. 

United  States,  §  344. 
•wearing,  §  359. 
testimony,  enforcing,  §§  346,  352,  355,  357. 

claim  cases  before  departments,  §  355. 

competence,  see  that  heading,  above. 

Congress,  immunity,  §  337. 

immunity,  see  that  heading  above. 

interstate  commerce  act,  §  357. 

patent  cases,  §  352. 
testimony  of, 

by  deposition,  after  case  goes  on  trial  calendar,  Eq.  R.  56,  §  677. 

expert  in  patent  and  trademark  cases,  Eq.  R.  48,  §§  1041,  1045. 

how  stated  in  record,  on  appeal,  Eq.  R.  75,  §  1671. 

signature  to  testimony  before  examiner,  Eq.  R.  51,  §  381. 

to  be  read  to,  Eq.  R.  51,  9  381. 

testimony  usually  to  be  taken  in  open  court,  Eq.  R.  46,55270,  1040,  1043. 
United   States,  enforcing  attendance  of,  §§  344,  354,  355,  357. 

recognizance  in  criminal  cases,  §  342. 
Vermont,  recognizance  in  criminal  cases,  8  341. 

WOMEN,  admission  to  practice  in  Supreme  Court,  fi  1532. 
citizenship  of,  §  148. 

WRIT, 

see  various  kinds  of,  below. 

C.  C.  A.,  §1473. 

copy  of,  jailer's  authority,  5  1269. 


1220  INDEX. 

WBIT  (Continued). 

court's  power  to  issue,  §  1100 

not  required  to  bring  a  person  in  custody  into  court,  §  1272. 
one  writ  where  several  indictments  against  same  person,  §  1271. 
removal  of  prisoner  from  one  district  to  another,  §  1270. 

WBITING,  call  for  admission  of  execution  or  genuineness  of,  Eq.  E.  58, 
85670,  940. 

WETTINGS,  productions  of  required  by  master,  E'q.  R.  62,  §  1063. 
WEIT  NE  EXEAT,  §  1113. 

WBIT  OF  ASSISTANCE, 

for  delivery  of  possession,  Eq.  E.  9,  §  1143. 
when  to  issue,  Eq.  B.  7,  §  1112. 

WEIT  OF  ATTACHMENT, 
see  also  attachment,  ch.  17. 
amendment  of,  §  489. 

WEIT  OF  CEBTIOBABI,  see    also    Certiorari, 

applications  under  §  240,  Jud.  Code,  instructions,  Appendix,  p.  813. 

WEIT  OF  EBEOE,  ch.  75. 

see  Eemoval  by  Writ  of  EVror  to  State  Court  of  Last  "Resort,  §  1601. 

Alaska  district  court  to  circuit  court  of  appeals,  §§  1505,  1506. 

Alaska  district  court  to  Supreme  Court,  §  1561. 

allowance  of,  §  1658. 

amendment,  §  1659. 

appearance  bond  form,  Addenda  Eule  45  C.  C.  A.  Appendix. 

appellate  method  of  review  of  state  court  decisions,  §  1602. 

assignment  of  errors,  §  1661. 

bail,  circuit  court  of  appeals,  Eule  35  C.  C.  A.  (2d  Circuit)  Appendix. 

bankruptcy,   circuit   court   of   appeals,   Eule   45    C.    C.   A.    (8th    Circuit) 

Appendix, 
bond,  §§  1661,  1664. 
certification,  question  of  law,  §  1677. 

China,  United  States  court  to  circuit  court  of  appeals,  §  1504. 
circuit  court  of  appeals,  Eule  14  C.  C.  A.  Appendix. 

district  court,  time,  §  1653. 

procedure,  §§  839,  1657,  1676. 

Supreme  Court  to,  §§  1559,  1655. 
citation,  §  1663. 
costs,  §  1687. 


INDEX.  1221 

WRIT  OF  ERROR  (Continued). 

court  of  claims  to  Supreme  Court,  §  1560. 
criminal  cases  circuit  court  of  appeals, 

Eule  35  C.  C.  A.  Appendix. 

34  C.  C.  A.  (4th  Circuit)  Appendix. 
37  C.  C.  A.  (6th  Circuit)   Appendix, 
damages,  §  1687. 
district  court,  §  1501. 

circuit  court  of  appeals  to,  §  1653. 

fact,  no  reversal  for  error  in,  §  1686. 

Supreme  Court  to,  time  for,  §  1652. 

District  of  Columbia  court  of  appeals  to  Supreme  Court,  5  1561» 
filing  record,  §  1670. 
form  of,  in  8th  Circuit, 

Addenda  to  Rule  45  C.  C.  A.  (8th  Circuit)   Appendix. 
Hawaii  to  Supreme  Court,  §  1561. 
instructions  as  to  suing  out  for  circuit  court  of  appeals,  Addenda  Rule 

45  C.  C.  A.  Appendix, 
issuance  to  Supreme  Court,  §  1660. 
parties,  §  1651. 

Philippine  Islands  to  Supreme  Court,  §  1551. 
Porto  Rico  to  Supreme  Court,  §  1561. 
preparation  of  record, §  1670. 
proceedings  in  forma  pauperis,  §  1668. 
procedure, 

appellate  court  after  transcript  filed,  §  1685. 

district  court  to  circuit  court  of  appeals,  §  1653. 

record,  §  1670. 

removal  from  state  court  by  writ  of  error,  $  1609. 

summary,  §  1676. 

to  territories,  §§  1679-1685. 
reduction  of  record,  §  1670. 

return,  circuit  court  of  appeals,  Rule  14  C.  C.  A.  Appendix, 
reversal  not  given  for  error  in  fact,  §  1686. 
state  court  decisions  reviewed  by,  in  federal  appellate  courts,  eh.  74, 

to  Supreme  Court,  time  for,  §  1656. 
state  court,  time  for,  §  1656. 
summary  of  procedure,  9  1676. 
supcrsedeas,  §  1666. 

Supreme  Court, 

certification  of  questions  of  law,  §§  1677.  1684. 

circuit  court  of  appeals,  time  for,  §  1655. 

district  court,  time  for,  §  1652. 

procedure, §  1676. 
territories,  §9  1679-1685. 


1222  INDEX. 

time, 

return  of  writ  of  error,  §  1670. 

writ  of  error  circuit  court  of  appeals  to  Supreme  Court,?  1655. 

writ  of  error  district  court  to  circuit  court  of  appeals,  §  1653. 

writ  of  error  district  court  to  Supreme  Court,  §  1652. 

writ  of  error  to  state  court,  §  1656. 

WRIT  OF  EXECUTION  to  enforce  decree  for  payment  of  money,  Eq.  R.  8, 
§§473,  1112,  1140,  1143. 

WRIT  OF  HABEAS  CORPUS, 
see  also  Habeas  Corpus,  ch.  64. 
form  of  return,  §  1337. 
return  of,  §§  1336,  1340. 
time  of  return,  §  1336. 

WRIT  OF  MANDAMUS, 
Supreme  Court,  §  1535. 

WRIT  OF  PROHIBITION, 
Supreme  Court,  §  1534. 

WRIT  OF  SEQUESTRATION,  Eq.  E.  7,  8,  §  1112. 

- 

WRIT  SCIRE  FACIAS,  §  1114. 

WRITTEN  INSTRUMENTS,  see  also  Books,  Papers,  Documents,  Production, 

etc. 
depositions  under  commission,  production  of,  §  387. 

WYOMING,   districts,  terms  and  places  of  holding   court,  §  115,  Jud.  Code, 
Appendix. 

Y. 

YELLOWSTONE  NATIONAL   PARK,   appellate   jurisdiction   district  court, 
§105. 


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